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Vacancies in Elected Office – Questions and Answers (Part 2)


March 11, 2021  by  Steve Gross
Category:  Legislative Body

Vacancies in Elected Office – Questions and Answers (Part 2)

In Part One of this blog series we answered some questions about how a position becomes vacant. In this part we’ll answer questions about what happens next, such as how to fill that vacant elected position.

How Do We Fill the Vacant Position?

That depends on the agency and whether the position is partisan or non-partisan.

For partisan elected positions

The process for filling a partisan vacancy is set forth in the Washington State Constitution at Article II, Section 15. It requires the county board of commissioners or council to appoint a replacement from a list of three candidates nominated by the county party to which the former official belonged.

Which positions are partisan? RCW 29A.04.110(2) says that all state offices except judicial officers are partisan and RCW 29A.04.110(3) says that “[a]ll county offices except (a) judicial offices and (b) those offices for which a county home rule charter provides otherwise” are partisan offices.

For non-partisan positions

RCW 42.12.070 addresses filling nonpartisan vacancies and it applies to:

  • special purpose districts where property ownership is not a qualification to vote,
  • a town, and
  • cities other than a first-class city or a charter code city.

RCW 42.12.070’s only requirement is that the governing body of the agency appoint a qualified individual as a replacement within 90 days of the vacancy. If the governing body fails to meet this deadline it loses the authority to appoint a replacement. At this point the county legislative body has 180 days from the date of vacancy to make the appointment. If the county legislative authority does not make an appointment during that time the county may petition the governor to make the appointment.

There is no statute that specifically applies to first-class or charter code cities. If your charter does not provide for a process it would probably be reasonable to follow the process in Chapter 42.12 RCW.

Procedural Questions

There is very little guidance about the process an agency should use to advertise, interview, and select the appointed replacement for a vacant elected position. Not surprisingly, MRSC has received many questions related to this issue over the years. Here are some tips based on our previous research:

  • Candidates for appointment to elective office must be interviewed in an open session, but the governing body can meet in executive session to evaluate the qualifications of a candidate, per RCW 42.30.110(1)(h).
  • Candidates cannot be excluded from the part of the meeting where other candidates are being interviewed. The governing body can ask them to wait outside the meeting room but RCW 42.30.030 does not let the agency exclude them.
  • Can an applicant who does not meet the residency requirement when applications are being reviewed, but would meet it at some point in the future, be considered for appointment? There is no clear answer to this question. MRSC believes the most defensible practice would be to not make the formal appointment until the applicant meets all requirements, including residency.
  • Agencies are not required to place a “legal advertisement” before considering candidates. However, wide dissemination of the opening — along with a clear statement of eligibility criteria and a deadline to submit applications — will provide for a broader pool of applicants. Consider issuing press releases and publishing the notice on your agency’s website (if you have one).

Vacancies in Executive Offices

MRSC has also received questions about vacancies in the office of the mayor as well as other elected chief executive officers.

Who runs things when the elected executive officer’s position is vacant?

As always, this depends on the type of agency. For most cities and towns, state law says the council can appoint a mayor pro-tem to act as mayor until the vacancy is filled. In non-charter counties the commission exercises executive as well as legislative powers. So, the remaining commissioners retain their executive authority even if they have to temporarily reassign some of the duties of the vacant position. And the other elected department heads continue to have authority to manage their departments and execute contracts within the county’s adopted budget.

If a county elected department head, such as the prosecutor or auditor position becomes vacant, their deputies can fill in temporarily until the board or council appoints a replacement to the position.

Who is eligible to be appointed to a vacated mayor’s position?

If it is the mayor’s office that has been vacated, current members of the governing body are eligible to be appointed to the position. The city or town may also appoint someone who is not serving on the governing body so long as that person is eligible to serve as mayor.

There is no state law that specifically says a member of the governing body cannot vote for themselves to fill the vacated mayor position. However, if assuming the mayoral position would result in a pay increase for the member, MRSC believes this individual would be prohibited from voting for themselves under Washington’s common-law ethics doctrine because the member now has a financial interest in the outcome of the vote.

Conclusion

Vacancies in elected offices can create uncertainty and stress for the agency’s staff as well as for its constituents. Having a well-defined process for managing and filling the vacancy will allow the agency to continue to operate smoothly. Please contact us if you have questions we haven’t answered here or in our previous post.


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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