THELAWOFFICESOF

WHITSONW. ROBINSON, PLC

35 SOUTHFOURTHSTREET
WARRENTON, VIRGINIA20186
TELEPHONE: (540) 347-2200
FACSIMILE: (540) 347-6031
WhitsonW. Robinson E-MAIL: WWR@WHITS0NR0BINS0N.COM Of Counsel:
VABar Robinson&Robinson, LLC
June 16, 2014
Councilman Duggan:
You have asked me to opine on an issue facing the Town Coimcil upon your vacating
your current Council seat when you swear in as Mayor of the Town of Warrenton. The facts are
that in May of 2008 you were elected to Town Council during a regularly scheduled election. For
the past 6 years you have served as the Ward 1 representative on Warrenton's Town Council
having won re-election in May of 2012. On May 6, 2014 you were elected Mayor of Warrenton
in an uncontested race. Once sworn in as Mayor your seat as Ward 1 Representative for the
Town of Warrenton Town Council will become vacant. You have presented me with two issues
facing the Council: 1) Will there be a need for a special election once you have been sworn in as
Mayor; and 2) Would a special election be needed if you were to resign your position as Town
Council Ward 1 Representative prior to July 1, 2014.
The first issue points me to the Virginia Code sections that apply to the elections and
terms for Council Members and filling the vacancies of said seats. Virginia Code 24.2-222
provides for the enabling legislation on members of Town Council and Mayors. It specifically
states as follows:
24.2-222. Election and terms of mayor and council for cities and towns.
The qualified voters of each city and town shall elect a mayor, if so provided by charter,
and a council for the terms provided by charter. Except as provided in 24.2-222. Kand
notwithstanding any other provision of law, general or special: (i) any election of mayor
or councilmen of a city or town whose charter provides for such elections at two-year or
four-year intervals shall take place at the May general election of an even-numbered year
and (ii) any election of mayor or councilmen of a city or town whose charter provides for
such elections at one-year or three-year intervals shall take place at the general election in
May of the years designated by charter. The persons so elected shall enter upon the duties
of their offices on July 1 succeeding their election and remain in office until their
successors have qualified.
The Town of Warrenton's Charter provides that there be five Ward seats and two At-Large seats:
Town Charter Sec. 3-2. - Election and terms of members.
The members of the council inoffice at the effective date of this charter amendment will
hereby continue inoffice until June thirtieth [,] nineteen hundred eighty-seven. On the
first Tuesday in May, nineteen hundred eighty-seven, there shall be elected seven (7)
councilmen, five (5) of whomshall be elected fromwards and two (2) at large. The ward
councilmen shall serve for a termof one (1) year and the at-large councilmen for a term
of three (3) years. On the first Tuesday inMay, nineteen hundred eighty-eight, the five
(5) ward councilmen will run for terms of four (4) years. On the first Tuesday in May,
nineteen hundred ninety, the two (2) at-large councilmen will run for terms of four (4)
years. On the first Tuesday in May nineteen hundred ninety-two, the five (5) ward
councilmen will run for terms of four (4) years. Thereafter all councilmen shall be elected
for terms of four (4) years tofill vacancies caused byexpiration of terms of office as
hereinabove provided.
The seat you currently hold and intend to vacate is Ward One and is set forth by map and metes
and bounds description found in Town Hall. The seat you currently hold maintains a four year
term; therefore, if you vacate your seat upon being sworn in as Mayor after July 1, 2014, the
remaining termfor your seat will be less than two years.
When a seat becomes vacant it must be decided whether state statutes apply versus the
Town Charter. In making that determination Virginia Code 24.2-225must be reviewed. That
code section is titled "Applicability." and states as follows:
Virginia Code 24.2-225. Applicability.
This article applies tovacancies in anyelected constitutional or local office if there is no
other statutory or charter provision for filling a vacancy in the office. Further provisions
within this article which specifically override other statutory or charter provisions shall
prevail.
This statute nowpoints to the Town Charter to determine if there is a provision for filling a
vacancy in the local elected office for Ward One Town Council Member of the Town of
Warrenton. The Town Charter specifically states as follows:
Town Charter Sec. 3-5. - Filling vacancies.
Vacancies on the council shall be filled for the unexpired portion of the termby a
majority vote of the remaining members of the council, if such vacancy shall occur two
(2) years or less before the date of expiration of such terms. If the vacancy shall occur
more than two (2) years before the expiration of the term, the vacancy shall be filled by a
majority vote of the remaining members of the council only until the next councilmanic
election, at which election the qualified voters shall elect a person to serve as councilman
for the remaining two (2) years of the term.
The Town Charter maintains a provision as set forth above providing for the filling of a vacancy.
It clearly states that if the vacancy occurs within two years or less that a majority vote of the
Council shall be filled for the unexpired portion of the term. The key word in this section is
"shall" and carries with it a significant meaning. It is clear that there are no exceptions. It does
not say "may" be filled or "shall be filled until a special election shall be held." It is unequivocal
that the remaining termbe fmished by appointment.
The next portion of the analysis then goes to the second portion of Virginia Code 24.2-
225 in which the statute states "Further provisions within this article which specifically override
other statutory or charter provisions shall prevail." This means that the Virginia Code must be
viewed with respect to determining whether there are any overriding provisions which would
make the Charter subordinate to the state code. In this instance the key words are "specifically
override" ... Charter provisions.
The first place to look within the Virginia Code for any provisions that specifically
override the Town's Charter would be in the same Title and Chapter for Elections as Virginia
Code 24.2-225. The next Virginia Code section in that Titie is 24.2-226Election to fill
vacancy, where a search would showwhether there are any provisions that specifically override
the Town Charter. Please bear in mind that this part of the opinion assumes that you will take
office after July 1, 2014 and therefore the vacancy will occur after July 1, 2014. This is an
important factor. The Virginia Code section that was signed into lawby the Governor on April,
1, 2014 and that will become effective on July 1, 2014 is as follows in its entirety:
CHAPTER476
An Act to amend and reenact 24.2-226 of the Code of Virginia, relating to elected
constitutional and local offices; special election to fill vacancy.
[H1024]
Approved April 1, 2014
Be it enacted by the General Assembly of Virginia:
1. That 24.2-226 of the Code of Virginia is amended and reenacted as follows:
24.2-226. Election to fill vacancy.
A. Avacancy 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 or for constitutional officers as provided in 24.2-228.1,
or unless provided otherwise by statute or charter requiring special elections within the
time limits provided in this title. The governing body or, in the case of an elected school
board, the school board of the county, city, or town in which the vacancy occurs shall,
within 15 days of the occurrence of the vacancy, petition the circuit court to issue a writ
of election to fill the vacancy as set forth in Article 5 ( 24.2-681 et seq.) of Chapter 6.
Either upon receipt of the petition or on its own motion, the court shall issue the writ
ordering the election promptly, which shall be no later than and shall order the special
election to be held on the date of the next general election in November, or in May if the
vacant office is regularly scheduled by lawto be filled at that time in May. However, if
the governing body or the school board requests in its petition a different date for the
election, the court shall order the special election be held on that date, so long as the date
requested precedes the date of such next general election and complies with the
provisions of 24.2-682., unless If the vacancy occurs within 90 days of the next such
general election and the governing body or the school board has not requested in its
petition a different date for the election, the special election shall be held on the date of in
which event it shall be held promptly but no later than the second such general election.
Upon receipt of written notification by an officer or officer-elect of his resignation as of a
stated date, the governing body or school board, as the case may be, may immediately
petition the circuit court to issue a writ of election, and the court may immediately issue
the writ to call the election. The officer's or officer-elect's resignation shall not be
revocable after the date stated by himfor his resignation or after the forty-fifth day before
the date set for the special election. The person so elected shall hold the office for the
remaining portion of the regular termof the office for which the vacancy is being filled.
B. Notwithstanding any provision of lawor charter to the contrary, no election to fill a
vacancy shall be ordered or held if the general election at which it is to be called is
scheduled within 60 days of the end of the termof the office to be filled.
C. Notwithstanding any provision of lawor charter to the contrary, when an interim
appointment to a vacancy in any governing body or elected school board has been made
by the remaining members thereof no election to fill the vacancy shall be ordered or held
if the general election at which it is to be called is scheduled in the year in which the term
expires.
Subsections Band Cboth have overridmg provisions as is evidenced by the language
"Notwithstanding any provision of lawor charter to the contrary, ..." This language plainly
means that the terms that follow"contrary" will be what govems. So in subsection Ba Charter
which would require a special election to be held within 60 days of the termexpiring would be
trumped and no special election would be held. In the facts as presented here, this does not apply.
In subsection Cthe language after "contrary" indicates that if a Charter called for a special
election in the same year as the termwould expire, that charter would be trumped and no special
election would occur.
Subsection Ais the next section to reviewfor overriding language. On the face of the
statute there appears to be no overriding language to unmediately remove the Town of
Warrenton's Charter proscribing an appointment that "shall be filled for the unexpired portion of
the term" (emphasis added). What subsection Adoes say which appears to be a touch confusing
is that "Avacancy 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 or for constitutional officers as provided in 24.2-228.1, or unless provided
otherwise by statute or charter requiring special elections within the time limits provided mthis
title." The confusing part is two-fold.
The second confusing part will be analyzed first. It is easier to parse out portions of that
statute so that it may be read a little clearer. "Avacancy in any elected local office ... shall be
filled as provided by 24.2-228 ... or unless provided otherwise by ... charter requiring special
elections within the time limits provided in this title." The Town of Warrenton's charter provides
for when to have a special election and when not to. As cited entirely above, the charter states
that if the vacancy occurs with over two years remaining in the term, that the special election is to
be held at the next "councilmanic" election. Had you resigned prior to the previous election held
in May of 2014, there would have been a special election. Instead, in this part of the analysis,
your vacancy occurs during a time when the Charter specifically states that no special election is
to be held. These conditions fit within the time limits of this title. Therefore this is not an
overriding provision.
Nowthe first confusing part will be analyzed. This involves the section that states that
"Avacancy in any elected local office ... shall be filled as provided by 24.2-228 ..." Now
Virginia Code 24.2-228 must be reviewed and states as follows:
24.2-228. Interimappointment to local governing body or elected school board; elected
mayor.
A. When a vacancy occurs in a local governing body or an elected school board, 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. If a majority of the remaining members of the body
or board cannot agree, or do not act, the judges of the circuit court of the county or city
may make the appointment. Notwithstanding any charter provisions to the contrary, 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. Any
person so appointed shall hold office the same as an elected person and shall exercise all
powers of the elected office.
If a majority of the seats on any governing body or elected school board are vacant, the
remaining members shall not make interimappointments and the vacancies shall be filled
as provided in 24.2-227.
B. When a vacancy occurs in the office of a mayor who is elected by the voters, the
council shall make an interimappointment to fill the vacancy as provided in subsection
A.
C. For the purposes of this article and subsection Dof 22.1-57.3, local school boards
comprised of elected and appointed members shall be deemed elected school boards.
D. The failure of a member of a local governing body or elected school board or mayor to
take the oath of office required by 49-1 before attending the first meeting of the
governing body or school board held after his election shall not be deemed to create a
vacancy in his office provided that he takes the oath within 30 days after that first
meeting.
Subsections B, C, and Dare not relevant to the facts as presented here. It then becomes necessary
to focus on any overriding language in subsection A. It is noted that there is overriding language
as it relates to howlong the interimappointment shall last. Here the relevant language states in
pertinent part "Notwithstanding any charter provisions to the contrary, the person so appointed
shall hold office only until the qualified voters fill the vacancy by special election pursuant to
24.2-682and the person so elected has qualified." The language after "contrary" states that the
person shall hold the office until the vacancy is filled by special election. This language is
confusing and has been the cause of some significant attempts at research, but have yielded
nothing on point. There have been some Attorney General Opinions, however, that do give some
guidance. For example Front Royal appears to be a notable place for requiring an AG's Opinion
on election matters. In an Attorney General Opinion by James S. Gilmore, III, 1996 Va. AG
LEXIS89; 1996 Op. Atty Gen. Va. 127 dated December 23, 1996, the Attorney General states,
"The procedures set forth in Article 6, Chapter 2 of Title 24.2 (Article 6) apply to the filling of
vacancies in any elected local office if there is no other statutory or charter provision for filling a
vacancy in the office. Sections 24.2-226 and 24.2-228 apply to filling vacancies in local
governing bodies, with 24.2-226 dealing with special elections, and 24.2-228 dealing with
interimappointments." The case itself is more about whether a Council maintains its right to
appoint a member beyond the 45 day requirement. The pertinent aspect of the above referenced
quote is that he specifically states that 24.2-226 deals with special elections and 24.2-228
deals with interimappointments. This means that when reviewing overriding language as to
whether a special election or the right of a Council to call for one rests in the language of 24.2-
226 and not 24.2-228. 24.2-228 only relates to interimappointments and does not specifically
require a special election to be held. This is important because of the language in 24.2-225
which states that the overriding language must be specific. 24.2-228 does not specifically
override the Town of Warrenton Charter. In other words, it does not specifically state that a
petition shall be filed to require a special election. It does not specifically state that
notwithstanding a Charter provision to the contrary, all vacancies shall be filled by a special
election. If this were the case, then 24.2-226 would have specific overriding language in
subsection A. In fact, 24.2-226(A) very specifically does not have overriding language because
subsections Band Cdo have overriding language. If the legislature had intended for localities to
be required to have special elections, it would have included the overriding language as
evidenced in subsections Band C. Here there is no specificity in the overriding language of
24.2-228 to make the Town of Warrenton's Charter subordinate to 24.2-226(A). Further,
24.2-226(A) requires a petition to be filed even if the Council wishes invoke its newly provided
power of asking for an earlier special election date. The Town of Warrenton Charter specifically
states that the appointment for a vacancy of less than two years shall be filled for the unexpired
portion of the term. This means that there is no petition to be filed with the Circuit Court. The
appointment is fmal, unless there is no appointment, which according to the non-binding Attorney
General's Opinion cited earlier, the Circuit Court would ultimately have to make the
appointment. Had the General Assembly intended to create the requirement that a special
election be held or that the Council hold the newpower to call for an earlier one it could have
written language in 24.2-228 that cites both 24.2-226 along with 24.2-682 (which outlines
the dates in which special elections can be held, i.e., Tuesdays and not on primary days). The
General Assembly did not cite 24.2-226.
The override language in 24.2-228 does not affect the Town's Charter for an additional
reason. In a series of the opinions, the Attorney General has advised that, when a Charter
provision "touches upon the appointment to and holding of public office, the charter provision is
one for the organization and government of a city and prevails over general law" (Emphasis
added). 1979-1980 Op. Atty. Gen. Va. 70. In other words, whether a vacancy is to be filled by a
council appointment, by the voters at an election, or by a combination of the two is a matter
involving the organization of a municipality, and a Charter provision prescribing howthe vacancy
is filled must be construed as controlling over a general lawprovision. On the other hand, if an
election must be held, then the timing of the election is governed by general law.
The Attorney General opinion cited above will illustrate this point. There, the City of
Manassas Park had a Charter provision that authorized the council to fill a vacancy by
appointment for the entire unexpired term. It made no provision at all for a special election. In
1977, the General Assembly added an override provision to the Virginia Code section dealing
with vacancies involving local governing bodies. It specified exactiy when a special election
would be held "notwithstanding any provision of lawor charter to the contrary." The Attorney
General held that the Manassas Park Charter was not nulhfied by the override language. He
explained that the Charter did not call for a special election under any circumstances. Therefore,
the overriding language in the Code provision "does not affect the necessity for special elections,
merely their timing when required." (Emphasis added).
Thus, to the extent the statutory language here may be ambiguous, the Attomey General
has made it clear that a Charter provision specifying howa vacancy is to be filled must be
construed as prevailing over general lawprovisions. In Warrenton's case, its Charter clearly
directs the Council to fill any vacancy by appointment for the entire unexpired term, as long as
that period is two years or less. Hence, that provision takes precedence over the override
language that purports to limit the termof office of the person appointed by Council.
For the foregoing reasons as outlined above, there are no specific overriding provisions in
the Virginia Code that specifically state the Town of Warrenton's Charter not be adhered to. It is
heretofore my opinion that should you take your oath of office for Mayor subsequent to July 1,
2014, the Town Council does not have the authority to petition the Circuit Court of Fauquier
County for a special election. Therefore, the Town Council must appoint a citizen of Ward One
to fill the vacancy that would be left by your vacating that seat.
The next question asked by you involves much of the same facts as above, but with the
caveat of your resigning your seat prior to July 1, 2014. The same analysis would apply in first
reviewing 24.2-225. The standard is to look to see if Title 24.2 of the Code of Virginia even
appUes to the vacancy, and then to determine whether there are any overriding clauses in the
code. Again 24.2-225 states, "This article applies to vacancies in any elected constitutional or
local office if there is no other statutory or charter provision for filling a vacancy in the office."
The Town Charter does specifically have a provision for filling a vacancy. The issue here is that
the Charter speaks to vacancies occurring if there are two or more years before the termends, or
if the vacancy occurs if there is less than two years remaining.
In your second question, you ask what would happen if you resign your seat with more
than two years remaining. The Town Charter states, "If the vacancy shall occur more than two
(2) years before the expiration of the term, the vacancy shall be filled by a majority vote of the
remaining members of the council only until the next councilmanic election, at which election the
qualified voters shall elect a person to serve as councilman for the remaining two (2) years of the
term." Here there would normally be a special election. The problemoccurs in that the next
councilmanic election would be in May of 2016. If you resign your seat prior to July I, 2014, and
if there was an overriding clause requiring a special election, then the current code (not the new
code) might apply. Under the current 24.2-226 there is no mechanismthat could create an
earlier election than May of 2016. It appears that there is a gap between the councilmanic
election that just occurred and the two year mark. Clearly in 24.2-226 the code reads, "... the
court shall issue the writ ordering the election promptly, which shall be no later than the next
general election in November, or in May if the vacant office is regularly scheduled by lawto be
filled at that time ..." The legislature chose to place May as the time for elections when those
elections are regularly scheduled. Had the legislature chosen to allowfor November elections to
be included for May elections, it would have left the second phrase regarding May out. Or
perhaps various other terms to produce a different result. Regardless, there is no overriding
provision in 24.2-226(A) which would oust the Town's Charter and therefore the Charter
provision remains.
So nowthe remaining issue is that when is the next election for your seat as it would be
vacant prior to the two year mark. As noted above, the next election would be in May of 2016 as
no other councilmanic elections are between nowand then. As a practical matter, that is when
the next election is anyway and therefore a moot point. Even still, 24.2-226(C) would prohibit
it as a matter of law. That section reads as follows, "Notwithstanding any provision of lawor
charter to the contrary, when an interimappointment to a vacancy in any governing body or
elected school board has been made by the remaining members thereof, no election to fill the
vacancy shall be ordered or held if the general election at which it is to be called is scheduled in
the year in which the termexpires." As the election would be held in May of 2016 and that is the
year in which the termexpires, there cannot be an election.
Therefore my opinion as to both questions you have put before me is that no special
election is allowable under the law. The Council must appoint your successor for the remainder of
your term. Please let me knowif you have any further questions or concerns.
Whitson W. Robinson, Esq.