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Filling a Vacancy in City or Town Councils


September 8, 2020 by MRSC Insight
Category: Legislative Body

Filling a Vacancy in City or Town Councils

MRSC often gets questions regarding how to handle vacancies on city or town councils. This post addresses the basics.

When Does a Vacancy Occur?

Per RCW 42.12.010, vacancies on a governing body can occur due to death, resignation, removal, loss of residency, conviction of a felony, refusal to take the oath of office, breach of duties, or voiding of an election.

When is a resignation of an elected official effective?

Until 2002, the common law rule in Washington was that the resignation of an elected official was a two-step process — the announcement of the resignation and the acceptance of this resignation by the governing body. However, the state court of appeals in State ex rel. Munroe v. Poulsbo, 109 Wn. App. 672 (2002), held that the second step was no longer required. Instead, the court found that the mere announcement of a resignation meant to be effective immediately (e.g., a councilmember standing up and shouting, “I quit!” during a council meeting) was enough to complete the resignation process.

Resignation can also be made to be effective at some future date, but even then, the elected official may withdraw the resignation at any point up until the time specified for the resignation to be effective. Once the specified time for the resignation is reached, it is automatically effective without any further action being required by the governing body.

Residency requirements

In RCW 42.12.010, vacancy of an elective office due to residency loss is noted as:

ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed.

To continue to be a legally registered voter, a person must maintain residence in the precinct in which they are registered. See RCW 29A.08.010(2). “Residence” in this context means “a person's permanent address where he or she physically resides and maintains his or her abode.” See RCW 29A.04.151.

How to Fill a Vacancy

If there is a vacancy, a replacement needs to be appointed by the governing body. But how?

RCW 42.12.070(1) addresses filling non-partisan vacancies: “(T)he remaining members of the governing body shall appoint a qualified person to fill the vacant position.” If there is more than one vacancy to fill, one position is filled first and then, with that added appointee, a vote is taken to fill the other position(s). Id. If, due to vacancies, there is only one councilmember remaining or if all council positions are vacant, the county legislative authority appoints a qualified person or persons until the council has two members who can then begin the appointment of the remaining members.

The appointment of a new councilmember should be made within 90 days of a vacancy’s occurrence. If an appointment does not occur by then, the city council loses its authority to fill this seat. Then the county legislative body, within 180 days of the vacancy’s occurrence, makes the appointment (RCW 42.12.070(4)). If the county legislative authority fails to make the appointment within that time period, the governor may be petitioned by the city council or county legislative authority to do so. Id.

One final note: The resigning councilmember can participate in the process of filling the vacancy before the vacancy actually occurs — advertising for interested candidates, gathering background information, and so on — but cannot participate in any vote to fill the position because, technically, the vacancy does not yet exist. See AGO 1978 No. 20. Whether the resigning councilmember can vote on who to interview (and effectively vote to exclude applicants from the pool) is a grey area and should be reviewed with legal counsel.

What are the appointee requirements?

The person appointed to the position must have the same qualifications at the time of appointment as would a person elected into the position. In second-class cites, code cities, and in towns, this person must be a registered voter and a city or town resident. (See RCW 35.23.031 for second class cities; RCW 35.27.080 for towns; and RCW 35A.12.030 and 35A.13.020 for code cities). The code city statutes also provide that the person must be a resident of the city for a period of at least one year preceding their appointment. Cities with wards or districts also require that some or all council positions be filled by a resident of the particular ward or district.

The first-class city statutes are silent as to eligibility requirements, but a general statute, RCW 42.04.020, requires that a person must be a U.S. citizen and an “elector” of the jurisdiction to hold any elective office. Article six, section 1 of Washington State Constitution defines an elector as a person who is a U.S. citizen, 18 years of age or older, and a resident in the state, county, and precinct at least 30 days immediately preceding the election.

Making the Appointment

What process should be followed to make the actual appointment? Must the vacancy be advertised? Are applications required? The answer is that there is no particular process that must be followed; the council itself determines the process to use. Some cities advertise vacancies online and some advertise the application process itself. The council may interview candidates or ask for written responses to questions.

The Open Public Meetings Act directs that any interviews of candidates for appointment to elective office must be held in a meeting open to the public. However, the evaluation of candidate qualifications may be done in executive session during an open public meeting. See RCW 42.30.110(1)(h). 

Whatever process is used, the remaining councilmembers must vote on the appointment. If there is a tie vote among the members on the appointment, some jurisdictions allow the mayor to cast a tie-breaking vote.

Once a New Member is Appointed

Before assuming office, the appointee must take the oath of office and post a bond. Per RCW 42.30.205, the appointee must also obtain open government training within 90 days of assuming office, just as any elected official must do.  

The appointed councilmember serves until a qualified person is elected at the next general municipal election at which a council seat is usually on the ballot. If a vacancy occurs in first year of a term, the appointee will serve until the next general election and the person who wins will immediately take office and serves a “short term” of the remainder. If the vacancy occurs in the third year, the appointee will serve until the next general election and the winner will immediately take office and then continue to serve their full four-year term.

Resources

Here are examples of procedures cities have adopted for filling vacancies.


MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

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MRSC Insight reflects the best writing of MRSC staff on timeless topics that impact staff and elected officials in Washington cities, counties, and special purpose districts.

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