Legal Corner: Filling Vacancies on General Law City and Town Councils

By Joni Hoffman, League General Counsel

During the 2011 legislative session, S.B. 1318 was enacted that changed how vacancies on a general law city or town council, including the office of mayor, will be filled. Before the law was passed, a city or town council could fill a vacancy by either appointing someone to serve until the term expired or appointing someone to serve until the next regularly scheduled city or town election. S.B. 1318 changed that law to require that the person may only serve until the next regularly scheduled election unless the vacancy occurs too close to the time that nomination petitions are due for the next regularly scheduled election. The sponsor of the bill, Senator Gail Griffin (R-Hereford), stated that the reason she sought this change was to promote the election rather than the appointment of city and town council members. She would rather have individuals in office who were elected by constituents, especially for longer periods of time.

The League has received a number of questions about this law and we wanted to clarify its application.

Specific Provisions regarding Applicability

  1. The law only applies to general law cities and towns and not to charter cities.

  2. The law applies to cities and towns with four year staggered terms, not to those with two year terms.

  3. The law applies when a current member of the council or the mayor resigns or otherwise leaves office with more than two and one-half years remaining in his or her term of office. The law applies when the resignation occurs more than 30 days before the nomination petition deadline, which is ninety days before the primary election.

  4. The vacancy is filled for the remaining two years at a regular city or town election, not a special election.

  5. It is our opinion that if a candidate for the vacancy is elected at the primary, that person takes office following the canvass of the primary and does not have to wait until after the general election to take office as do other candidates elected at the primary.
Hypothetical to Demonstrate the Application of the Law

Councilman Doe is elected to office in the spring of 2010 and resigns his council office in September 2011 with nearly three years remaining on his term. The council accepts his resignation in October 2011 and appoints someone to fill the vacancy until after the next regular city or town election, which would be held in the spring of 2012. When the city or town clerk prepares nomination packets for the 2012 election, the clerk will prepare two different petitions, a four year term petition and a two year term petition. Candidates can choose which term they wish to run for but they may not run for both. At the 2012 primary election in March, the ballot will list the candidates for the four year terms and in a separate section, those for the two year term. If one of the candidates for the two year term receives a majority of the votes cast at the primary, that person takes office after the canvass of the primary. If not, the top two candidates for the two year term appear on the general election ballot, again in a separate section from those running for the four year terms, and the person receiving the most votes is elected and takes office with the other members of the council elected in 2012.

If councilman Doe resigns in December 2011 and the city or town is holding its regular council elections in the spring of 2012, the vacancy is filled by appointment because the resignation is not effective more than 30 days before the deadline for filing nomination petitions.

This law supersedes any city or town code provision a city or town may have on filling council vacancies to the extent those provisions conflict with the law. Cities and towns may wish to amend their codes to simply provide that vacancies will be filled as provided in A.R.S. ยง9-235 rather than reciting the statutory provisions in detail.

Please contact the League if you need more information about this law.

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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