Judges: JEREMIAH W. (JAY) NIXON, Attorney General
Filed Date: 10/29/1999
Status: Precedential
Modified Date: 7/5/2016
Senator Francis Flotron 7th Senatorial District Room 331 State Capitol Jefferson City, MO 65101
Dear Senator Flotron:
This letter is in response to your opinion request asking:
Whether or not the mayor of a Third Class City in a First Class Charter County has the power to appoint a person to fill a vacancy in the office of Councilmember when said Councilmember dies six (6) months and two (2) days before the next general election but where the office is not declared vacant until the next City Council meeting which occurs within six (6) months of the next general municipal election where the City has an Ordinance prescribing that said vacancy shall be filled by the Mayor by appointment. The question deals with when the vacancy occurs and the ability to appoint someone to replace a Councilmember in a Third Class Statutory City.
The letter states that the City of Chesterfield is a Third Class Statutory City located in St. Louis County.
Section
Vacancies, how filled. —
In counties of the first class with a charter form of government which have a population of at least nine hundred thousand inhabitants, if a vacancy occurs in any elective office, the mayor, or the person exercising the office of mayor, shall cause a special election to be held to fill such vacancy. When any such vacancy occurs within six months of a municipal election, no election shall be called to fill such vacancy, but the same shall be filled by the mayor or the person exercising the office of mayor by appointment. Any vacancy in the office of councilman which occurs within the six months shall be filled by election, in such manner as may be provided by ordinance. In all other counties, if a vacancy occurs in any elective office, the mayor, or the person exercising the office of mayor, shall recommend a person to fill the vacancy from the political party of the person who previously held the office. The council shall approve the person recommended by the mayor. The successor shall serve until the next regular election. If a vacancy occurs in any office not elective, the mayor shall appoint a suitable person to discharge the duties of the same until the first regular meeting of the council thereafter, at which time the vacancy shall be permanently filled.
Emphasis added. The question presented is when a vacancy in the office of Councilmember is deemed to have occurred.
When interpreting a statute, it must be read in conjunction with other statutes involving the same subject matter. Farmers'Electric Cooperative, Inc. v. Missouri Department of Corrections,
77.240 . Vacancy in office of mayor, how — filled president pro tem, duties of. —When any vacancy shall happen in the office of mayor, by death, resignation, removal from the city, removal from office, refusal to qualify or otherwise, the president pro tem of the council shall act as mayor until the next regular election except in counties of the first class with a charter form of government which have a population of at least nine hundred thousand inhabitants. In the case of a temporary absence of the mayor or disability to perform the duties of his office, the president pro tem of the council shall perform the duties of mayor until the mayor shall return or such disability be removed; and during the time the president pro tem of the council shall act as mayor, he shall receive the same compensation that the mayor would be entitled to. In counties of the first class with a charter form of government and which do not contain a city with a population of at least four hundred thousand, in case of vacancy other than a temporary absence or disability, the person exercising the office of mayor shall cause a new election to be held; provided, when a vacancy occurs within six months of a municipal election, no election shall be called to fill such vacancy.
Emphasis added. As Section
CONCLUSION:
It is the opinion of this office that a council member's office becomes vacant at the time of his death and therefore, pursuant to Section
Sincerely,
JEREMIAH W. (JAY) NIXON Attorney General