Alabama Advisory Opinions February 09, 2005: AGO 2005-066 (February 9, 2005)

AGO 2005-066.

Dear Mr. Tambling:

This opinion of the Attorney General is issued in response to your request on behalf of the Environmental Management Commission.

May the new Chair and Vice-Chair of the Environmental Management Commission ("Commission") take office pursuant to the special election of October 19, 2004?

Your request states as follows:

[T]he term for the Chair and Vice-Chair of the Commission [is] three years. . . . [T]he election of Commission officers shall be held after October 1 of the year in which the election is to take place. . . [T]he election schedule . . . was thrown off-track. . . .

The problem originated after the unexpected resignation of Commission member and Commission Chair, Dr. Richard Thigpen. Dr. Thigpen was elected Chair of the Commission in October 1999. Dr. Thigpen's term as Chair . . . would have ended contemporaneously with his term as a member of the Commission on September 30, 2002. However, by letter dated December 6, 2001, to then Governor Siegelman, Dr. Thigpen submitted his resignation . . . effective immediately. The election of Dr. William M. Sanders as Chair . . . and Mr. Sam H. Wainright as Vice-Chair took place during the Commission's next meeting in February 2002.

You further state that, "[a]t its October 19, 2004 meeting, the . . . Commission passed a motion to hold elections for Chair and Vice-Chair . . . with those results to be held in abeyance until either the terms of the present officers expire or until an opinion from the Attorney General could be obtained. . . ."

The members of the Commission are appointed to staggered six-year terms. Ala. Code § 22-22A-6(b)-(d) (1997). The Commission Chair and Vice-Chair are elected by the members of the Commission according to the rules of procedure adopted by the Commission. Rule 335-2-3.03(1) of the Rules of Procedure for Meetings of the Commission states that "[t]he Commission shall select a Chair and a Vice-Chair who will serve a three-year term." Ala. Admin. Code 335-2-3.03(1) (1998). Rule 335-2-3.03(2) states that "[e]lections shall be held at the first regularly-scheduled Commission meeting after October 1 of the year in which the election is to take place." Ala. Admin. Code 335-2-3.03(2) (1998). Thus, we know the length of the commissioner's terms, and we know when the elections should occur.

It appears that these rules were adopted to coincide with the staggered appointment of new Commission members who would take office in October every third year. Neither the rules nor the Commission statutes provide for the filling of a vacancy in the Chair or Vice-Chair positions, which is the scenario presented here where the members' terms on the Commission expire before their terms as elected officers expire. To avoid a vacancy in these positions, the Commission, as stated above, held a special election and elected a new Chair and Vice-Chair.

Ordinarily, in the absence of a provision of law providing otherwise, a person elected or appointed to fill a vacancy serves for the time remaining in the term of the person he or she replaces. Stated differently, the terms of the appointees are limited to the remaining unexpired term of the vacating official. Thomason v. Florence , 388 So. 2d 994, 996 (Ala. 1980). Thus, in this case, the officers elected in February 2002 should have held office until October 2002, when the next regularly scheduled election should have been held. Accordingly, the question becomes whether those officers elected in February 2002 are entitled to hold over and for how long. Obviously, they held office until the October 2004 election.

As a general rule, "in the absence of a constitution or statute providing otherwise, an officer is entitled to hold his office until his successor is appointed or elected and has qualified." 67 C.J.S. § 71 (1978). The law disfavors a vacancy in public office and takes great precautions to avoid such an occurrence. McRae v. State , 269 Ala. 241, 112 So. 2d 487 (1959). This Office has concluded, in situations involving other types of boards, that "in the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen." See Opinion to Raymond B. Cahoon, Mayor of Tuscumbia, dated June 26, 1990, A.G. No. 90-00306 (Tuscumbia Civil Service Board); Opinion to Al Shumaker, Attorney, Town of Centre, dated June 29, 1987, A.G. No. 87-00237 (member of a utilities board organized under section 11-50-230 of the Code of Alabama); and Opinion to Morris J. Brooks Jr., Member, House of Representatives, dated April 8, 1987, A.G. No. 87-00146 (member of the Board of Trustees of Alabama A&M University). Because an election was not held in October 2002, the officers continued to hold over until new officers were elected.

Commission Rules 335-2-3.03(1) and (2) contemplate a three-year October election cycle for the officers. The rules do not specify when the Chair and Vice-Chair take office, but the implication is that their term of office begins in October immediately following the election. It is the opinion of the Attorney General that, to ensure that the election schedule and term of officers remain as specified by state law and the Commission's own rules, the Commission acted properly in holding an election on October 19, 2004. Because the terms of the current Chair and Vice-Chair should have expired in October 2002, those officers are treated as though they have been holding over in the interim. The officers elected in October 2004 were elected for a three-year term that should have begun in October 2002, and thus, their terms will end in October 2005. In October 2005, based on the current Commission rules, officers should be elected for a 3-year term that runs from October 2005 to October 2008. The Commission may wish to consider amending its rules to provide a specific procedure for filling vacancies in the positions of Chair and Vice-Chair.

The new Chair and Vice-Chair of the Environmental Management Commission elected on October 19, 2004, should serve until the next regularly scheduled election in October 2005.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Ward Beeson of my staff.

Sincerely,

TROY KING

Attorney General

By: BRENDA F. SMITH

Chief, Opinions Division

TK/GWB

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