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Vacancies in Elected Office – Questions and Answers (Part 1)

March 8, 2021  by  Steve Gross
Category:  Legislative Body

Vacancies in Elected Office – Questions and Answers (Part 1)

In September 2020 MRSC published Filling a Vacancy in City or Town Councils. While that post focused on a high-level look at vacancies in cities and towns, it also provides useful guidance for other non-partisan agencies. MRSC has also written other blogs posts about vacancies in elected office, including can they live outside the area, even temporarily or when is a resignation by an elected official effective?

In this two-part blog series, we look at some of the more specific questions we’ve received related to vacancies in elected offices. Part One will cover questions about how a position can become vacant. Part Two will cover questions related to what a local government should do once an elected position is vacated.

Reasons for Vacancy

The reasons for vacancy in elected office are listed in RCW 42.12.010. These include:

  • The death of the incumbent;
  • Their resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;
  • Their removal;
  • Except as provided in RCW  3.46.067 and 3.50.057, Their ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which they shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which they shall have been elected or appointed;
  • Their conviction of a felony, or of any offense involving a violation of their official oath;
  • Their refusal or neglect to take their oath of office, or to give or renew their official bond, or to deposit such oath or bond within the time prescribed by law;
  • The decision of a competent tribunal declaring void their election or appointment; or
  • Whenever a judgment shall be obtained against that incumbent for breach of the condition of their official bond.

While the statute seems clear, its implementation is anything but simple, and the following sections cover broad areas under which MRSC received frequent questions.

Residency of elected officials

Where does the official live? RCW 42.12.010(4) says that an elected position becomes vacant when the official is no longer a legally registered voter of that jurisdiction. State voter registration laws (RCW 29A.04.151) define “residence” as “a person's permanent address where he or she physically resides and maintains his or her abode.” Over time this has been distilled to two tests: the physical location of a residence and where the official intends their permanent residence to be.

Physical location is usually easy to establish. The official either owns or rents a place somewhere in the jurisdiction and lives there or does not. If an official owns or rents more than one place, then you move to the question of which place the official considers to be their primary residence. The official’s intent can be established by both direct and indirect evidence. In terms of direct evidence, it’s simple enough to ask the official which location they consider their permanent residence to be. For indirect evidence, look at the address the official uses on their voters’ registration, driver’s license, tax records, children’s school enrollment forms, memberships in public parks and recreation programs, utility bills, and similar documents.

Note that an official may temporarily live outside the jurisdiction without vacating their office.  Sometimes an official will live outside of the jurisdiction because of a need to care for a family member, or because of a divorce, or because their house has burned down and is being reconstructed, or because they are on an extended work assignment. Each of those events could indicate that the official intends to return to the jurisdiction in which they serve as an elected official, and if that is the case it might be difficult to prove that the official has lost their residency within the jurisdiction.  Obviously, the longer the official lives outside the jurisdiction, the more difficult it becomes for them to prove the intent to move back.

Also consider whether the official continues to perform their duties while they are living elsewhere temporarily. Do they attend meetings, either in person or by phone or video conference? Do they continue to engage with their constituents and staff? The answer to these questions may inform the agency about the official’s intent.

How does someone challenge residency?

If the official who no longer resides in the jurisdiction does not resign voluntarily, RCW 7.56.010 provides for an action of quo warranto (literally, “what warrant”) that can be filed in the county superior court against any person who “unlawfully” holds a public office. This is a civil action that can be filed by any person, but typically the county prosecuting attorney is directed to do so. See RCW 7.56.020.

If the court finds that the official no longer resides in the jurisdiction it can issue an order that the position is vacant.

What about the “unexcused absence rule?”

In some agencies, state law says that an elected position becomes vacant if a member has a certain number of unexcused absences. For example, see RCW 70.44.045 for public hospital districts; RCW 57.12.020 for water-sewer districts; RCW 35A.13.020, incorporating RCW 35A.12.060 for code cities; and RCW 35.27.140 for towns. There does not appear to be a similar provision for non-charter counties. Local agency charters or rules may provide for a similar rule.

Some of these statutes provide for a specific process. For example, in towns, the council declares the position vacant. In water-sewer districts, the board must notify the commissioner in writing that a board member has two unexcused absences and that the position will be declared vacant if there is one more unexcused absence from a regularly-scheduled meeting.

What the statutes do not provide, however, is direction on how to decide what is an “excused” versus an “unexcused” absence. This is left to the discretion of the agency’s governing body. Most agencies require advance notice to the presiding officer and/or clerk stating the reason for a member’s absence (unless there is an emergency). Some agencies automatically excuse the absence if the member has given advance notice (subject to a motion to not excuse it) and others require a motion and vote to excuse each absence. You can find examples of these provisions in the rules linked on our Council/Board of Commissioners Rules of Procedure page.

Does a position become vacant automatically or is action required?

There does not appear to be clear law on whether an elected position automatically becomes vacant if one or more of the statutory conditions are met, or if the agency has to take some kind of action to have the position declared vacant. If the incumbent does not agree that the position is vacant because they no longer meet the qualifications for the office, MRSC believes that the governing body needs to take some kind of formal action to declare the position to be vacant and the basis for the vacancy.

The reason for the vacancy will dictate what kind of action will need to take place. For example, since the governing body decides whether an absence is excused, it could make findings about whether the member has missed the required number of meetings and whether those meetings are excused or not. It could then declare the position to be vacant. 

On the other hand, some of the reasons for disqualification may be more fact-specific, such as a change in residency or whether the official has breached a condition of their official bond. In those cases, the local government may want to file a quo warranto action and have a court decide.

One tactical question for a local government to consider is whether to proactively file a court case to have the position declared vacant or to adopt a motion declaring the position vacant and requiring the incumbent to go to court to overturn that declaration. An agency should discuss available options with their attorney and risk manager.

When is a vacancy effective?

If the elected member who is vacating the seat specifies an effective date for a resignation, that date controls. If the individual does not specify an effective date, it is effective when their resignation is delivered to the agency. Based on State ex rel. Munroe v. Poulsbo, 109 Wn. App. 672 (2002), the agency does not have to formally accept a resignation of an elected official for it to be effective.

If a vacancy is based on some other reason under RCW 41.12.010, the effective date is less clear. For those reasons based on a court order, the vacancy is probably effective the date the court enters the order declaring the position vacant. But there is an argument that it is not effective until all appeals have been exhausted. In cases where the legislative body declares the vacancy, such as when a member has a certain number of unexcused answers, the vacancy is probably effective when the vote is taken. Again, because this vote is subject to a court action it is possible that the effective date is after the time for filing a court action has passed.

In our next blog post we will discuss what to do now that the elected position is vacant.

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.

About Steve Gross

Steve Gross joined MRSC as a Legal Consultant in January 2020.

Steve has worked in municipal law and government for over 20 years as an Assistant City Attorney for Lynnwood, Seattle, Tacoma, and Auburn, and as the City Attorney for Port Townsend and Auburn. He also has been a legal policy advisor for the Pierce County Council and has worked in contract administration.



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