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New Law Could Shorten Some Council Members Terms
By Joni Hoffman, League General Counsel
As a result of recent legislation, some city and town council members are facing the possibility that their terms could be cut short by approximately six
months. How is that possible and would it even be legal? The answer is the subject of a recent General Counsel opinion issued by the League.
During the 2012 legislative session, H.B. 2826 was passed that requires, beginning in 2014, most city and town candidate elections to be held in the fall of even-numbered
years. Depending on when a city or town currently holds its regular candidate elections, cities and towns may have to decide whether to shorten the terms of office of
duly elected council members or allow council members to serve beyond the normal ending date for their terms of office.
For example, if a city or town holds its candidate elections in the spring of odd-numbered years, it will hold its next election in 2013. If someone is elected to a four
year term at that election, he or she would expect to serve until the spring of 2017. Because H.B. 2826 would not allow a candidate election to be held at that time,
there would have to be an election either in the fall of 2016 or in the fall of 2018. The former election would result in the person serving about six months less than
the term for which they were elected. The latter election would result in the person serving about 18 months longer than the term for which they were elected.
For cities and towns in this situation, it is clear that something must be done to remedy the issue. The problem of lengthening terms is already addressed in state law.
Arizona Revised Statutes section 38-295 provides that every public officer must continue to discharge their duties until a successor has qualified, even if his or her term
has expired. With respect to shortening the term of a sitting council member, that is more complicated.
A review of the case law from around the country finds that whether it is legal to shorten a term depends on who originally created the term of the office. For example,
if a term of office is set by the state Constitution, only the voters can change it. If it is statutory, only the Legislature can change it and if it is set by municipal
charter, the charter must be amended. Further, the cases hold that a term may be shortened by the appropriate authority even while there is an incumbent in office.
The terms of cities and towns in Arizona are set in state law. Arizona Revised Statutes section 9-232 requires that members of city councils hold office for two years. There
is also a statute that allows the voters to authorize staggered four year terms. Because the terms are statutory, the state Legislature could remedy this problem by enacting
a temporary measure to allow cities and towns that wish to shorten terms in order to comply with H.B. 2826 to do so.
There is also an argument that cities and towns do not need legislative authority since this issue was brought about by an act of the Legislature. There is at least one
case that states that if the express language of a statute cannot be followed without curtailing the term of office of a sitting member, the power to do so is implied. This
case is not controlling in Arizona but it makes a compelling argument for allowing cities and towns to act independent of the Legislature in this situation.
Because H.B. 2826 does not take effect until elections held in 2014, the League will plan to ask the Legislature to take action authorizing the temporary shortening of terms
if a city or town wishes to use that option. If a city or town chooses to allow members to extend their stay in office, no action should be needed because of the statutory
requirement for holding over.
If you want more information on this issue or if you want to read the General Counsel opinion, contact the League at 602-258-5786 or send an
email to info@azleague.org.
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League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
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