Alabama Advisory Opinions February 08, 2022: AGO 2022-020

Advisory Opinion Text

STEVEN T. MARSHALL ATTORNEY GENERAL

Mayor, City of Sheffield 600

N. Montgomery Avenue Sheffield, Alabama 35660

Municipalities - Holdovers - Term of Office - Personnel Boards -Colbert County

When the term of a Sheffield Civil Service Board member expires without his or her reappointment or replacement, under Act 1949-321, he or she is permitted to hold over for a reasonable period under the circumstances.

Dear Mayor Stanley:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Sheffield.

QUESTION

When the term of a Sheffield Civil Service Board member expires, can the incumbent member whose term expired continue to serve until reappointed or replaced by a new board member?

FACTS AND ANALYSIS

Act 1949-321 ("the Act") establishes the City of Sheffield's civil service system, including the Sheffield Civil Service Board ("board"). Ala. Acts No. 1949-321. Although the Act provides procedures for appointing board members and filling vacancies, it does not contain any express provision governing a situation when a board member has not been reappointed or replaced after his or her term has expired. Because a board member's term has expired and the board member has not been reappointed or replaced, you ask whether the board member may continue to serve until he or she is reappointed or replaced by a new board member.

Section 4 of the Act, in pertinent part, provides for the appointment of civil service board members and the filling of vacancies:

There is created the Civil Service Board of Sheffield, which shall be composed of three members designated respectively as Member No. 1, Member No. 2, and Member No. 3, each of whom shall be over twenty-five years of age, of recognized character and ability, and an actual resident in and a qualified elector of the city. No person shall be eligible for membership on the board who holds any civil office of profit under the city, county, or state. Immediately after the passage of this act, Members No. 1, 2, and 3 shall be appointed by the city governing body. Member No. 1 shall be appointed to serve for a period of one year, Member No. 2 shall be appointed to serve for a period of two years, and Member No. 3 shall be appointed to serve for a period of three years. Each year thereafter the City governing body shall appoint one person as the successor to the member of the civil service board whose term expires that year, to serve for a period of three years. Vacancies occurring from death or resignation shall be filled by the city governing body for the unexpired term. Any member of said board whose term shall expire shall be eligible for

reappointment. The board shall meet at least once a month in the municipal building on a date and at an hour to be fixed by its rules and regulations, and as often as shall be necessary for the orderly dispatch of its business. Two members shall constitute a quorum. All appointments to the board shall be by unanimous vote of the governing body of the City.

Ala. Acts No. 1949-321, § 4 (emphasis added). The Act specifies how vacancies are to be filled, appearing to limit the circumstances under which a vacancy can arise to those "occurring from death or resignation." Id. Although the Supreme Court of Alabama held in Griggs v. Bennett, 710 So. 2d 411, 412 (Ala. 1998), "that vacancies may occur for reasons other than the usual causes listed in an appointment provision," the situation you present in your opinion request does not appear to be a typical "vacancy" as described in section 4 of the Act. Because no candidate has been elected to start the current term, the person chosen by the board to fill the position would be the officer elected as the initial holder of the term rather than a replacement to fill out a term that has been vacated.

This Office addressed the circumstances under which an officer may "hold over" by retaining his or her office until a replacement is chosen when the appointment statute contains no holdover provision in its opinion to Honorable Fred G. Mott, City Administrator/Clerk, City of Foley, dated Sep. 23, 1980, A.G. No. 80-00586. This Office, quoting its opinion to Honorable A. H. Collins, State Superintendent of Education, dated Mar. 21, 1923, Quarterly Report of the Attorney General, Vol X, p. 152 (quoting, in turn, Mechem on Public Officers and Offices, p. 257 (emphasis added)), stated:

Section 397. HOW AND WHEN AUTHORIZED TO HOLD OVER - It is usually provided by law that officers elected or appointed for a fixed term shall hold not only for that term but until their successors are elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is then no successor elected and qualified to assume it, but the present incumbent will hold until his

successor is elected and qualified, even though it be beyond the term fixed by law.

Where, however, no such provision is made the question of the right of the incumbent to hold over is not so clear, but the prevailing opinion in this country seems to be that, unless such holding over be expressly or impliedly prohibited, the incumbent may continue to hold until someone else is elected and qualified to assume the office.

Such a rule seems to be demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.

Mott, pp. 2-3. Therefore, because the Act's appointment provision neither expressly allows nor prohibits an incumbent from holding over until his or her successor is elected, under the general rule, such an incumbent would be permitted to hold over for a reasonable period under the circumstances.

This Office further examined the conditions under which an incumbent officer might hold over when his or her successor has not been elected even when the appointment statute contains no holdover provision in its opinion to Honorable Lowell Barron, Member, Alabama State Senate, dated Aug. 2, 1996, A.G. No. 96-00283. Although such an incumbent holding over would serve as a "de facto officer" whose official acts "shall be binding and valid as to all persons interested in or affected thereby," he or she "may be liable to all penalties imposed by law for 'usurping or unlawfully holding office or for exercising the functions thereof without lawful right or without being qualified according to law.'" Barron, at p. 4. This Office also noted that the reasonableness of the holdover period would be "subject to greater scrutiny" when "the appointment process is simple." Id. Here, on the other hand, the fact that the Act requires a unanimous vote of the governing body of the City for any appointment to the board weighs in favor of allowing an incumbent to hold over so long as the City's governing body engages in good faith during the election process. Ala. Acts No. 1949-321, § 4.

CONCLUSION

When the term of a Sheffield Civil Service Board member expires without his or her reappointment or replacement, under Act 1949-321, he or she is permitted to hold over for a reasonable period under the circumstances.

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

Sincerely,

BEN BAXLEY chief Opinion Division