Alabama Advisory Opinions March 14, 2023: AGO 2023-022

Advisory Opinion Text

Municipalities - Mayors - Removal from Office - Vacancies - Hale County

If the mayor of a municipality fails or refuses to attend all regular or special called meetings of the council of the municipality for 90 consecutive days, he or she is removed from office by operation of law.

A Class 8 municipality may fill a vacancy in the office of mayor by vote of the municipal council, either from its own membership or from without the membership of the council.

Dear Mr. Leverett:

This opinion of the Attorney General is issued in response to your request on behalf of the Town Council of Newbern Alabama.

QUESTIONS

1. If the mayor of a municipality fails or refuses to attend all regular or special called meetings of the council of the municipality for 90 consecutive days, is he or she removed from office by operation of law?

2. How may a Class 8 municipality fill a vacancy in the office of mayor?

FACTS AND ANALYSIS

You state in your opinion request that the Town Council of Newbern ("Council") is unable to conduct business of the town because there is a dispute regarding who has the authority to act as Mayor. This Office, however, may not make factual determinations, such as making a final determination as to who has such authority. See Opinion to Honorable Lona Gail Bradford, Town Clerk, Town of Hollywood, dated Aug. 20, 1985, A.G. No. 85-00485, p. 1 ("[Criminal violations of the bid law involve factual determinations and factual determinations cannot be made by this office in advisory opinions."). This Office may opine on legal issues surrounding the Mayoral dispute, including the removal of the prior Mayor and the election of the current Mayor.

At its regular meeting held on August 10, 2020, the Council adopted a resolution stating that Patrick Braxton, having been the only person to timely file a statement of candidacy, was declared elected as Mayor under section 11-46-26 of the Code of Alabama. Ala. Code § 11-46-26 (Supp. 2022). On September 14, 2020, the Council used the same procedures to declare that, because only one person timely filed a statement of candidacy for each of the five town council places, such persons were elected to the Office of Town Council under section 11-46-26 of the Code.

As the terms for the new Mayor and Council were to commence on the first Monday of November 2020, the new Council first met on November 9, 2020. Mayor Braxton, however, was not present and, because the doors to the Town Hall were locked when they arrived, the Council met outside. The Council also called a special meeting to be held on November 19, 2020, for the purpose of discussing with the Mayor the organization of the Council, the setting of dates for Council meetings, the election of a Chairperson, and the conduct of necessary business.

Although he received notice by certified United States mail and spoke by telephone with the town's attorney, Mayor Braxton was unable to participate in the special meeting. The Council later held regular meetings on December 15, 2020; January 11, 2021; and February 8, 2021, but Mayor Braxton was again absent.

At the meeting on February 8, the Council acknowledged section 11-40-25 of the Code, which provides for the removal of any elected municipal official who misses all regular and special called meetings for 90 consecutive days. The Council met again on March 8, 2021, and all members present voted unanimously that Council Chairperson Woody Stokes, who was absent from that meeting, be elected Mayor, replacing Braxton. The Council adopted a resolution at its meeting on April 12, 2021, recognizing that Braxton had not attended any council meeting for 90 consecutive days beginning November 9, 2020, and was removed as Mayor by operation of law under section ll-40-25(b) of the Code.

Determining that Braxton had been removed from the office of Mayor by operation of law, the Council cited section 11-40-25 of the Code. That provision provides a mechanism for removing municipal officers, including a mayor, who misses all scheduled meetings of the council for 90 consecutive days:

(a) For purposes of this section, the term elected municipal official means any mayor, council member, or commission member elected or appointed to municipal office whose presence at council or commission meetings is counted towards establishing a quorum.

(b) Any elected municipal official who misses all regular and special called council or commission meetings for 90 consecutive days, beginning on the date of any absence, shall be removed from office by operation of law.

(c) For the purpose of applying subsection (b), on the date and time of any regular or special called council or commission meeting of a municipality, the clerk shall make a record of all elected municipal officials present or absent regardless of whether or not a quorum is present.

(d) At the next council or commission meeting following the date an elected municipal official has been removed from office pursuant to this section, the council or commission may vote to reinstate the elected municipal official removed from office as provided herein for any mitigating or extenuating circumstances as determined by a majority vote of the remaining voting members of the council or commission, including the mayor if the mayor is a voting member of the council as provided by law.

(e) If the council or commission does not reinstate the removed elected municipal official pursuant to subsection (d), the council or commission shall fill the vacancy as provided by law.

(f) This section shall not apply to any elected municipal official whose absence from any council or commission meeting is a result of military service.

Ala. Code § 11-40-25 (Supp. 2022) (emphasis added). In State ex rel. Williams-Scott v. Penny, 319 So. 3d 514, 516 (Ala. 2019), the Alabama Supreme Court affirmed the trial court's order holding that Ed May had been removed as mayor of the City of Fairfield by operation of law under section 11-40-25 of the Code because he did not attend any council meetings for 90 consecutive days. May constituted an "elected official" as defined under section ll-40-25(a) of the Code because, being the mayor of a municipality with less than 12,000 inhabitants, his "presence at council or commission meetings is counted towards establishing a quorum." Id., citing § ll-43-2(b), Ala. Code 1975. Conversely, mayors of municipalities with more than 12,000 inhabitants would not be counted towards establishing a quorum and, accordingly, would not be covered under section 11-40-25 of the Code.

Under the facts you have supplied in your request, Braxton's failure or refusal to attend Council meetings for 90 consecutive days - from November 9, 2020, until February 8, 2021 - likewise resulted in his removal from the office of Mayor by operation of law (unless his nonattendance was the result of military service as exempted under section ll-40-25(f) of the Code). Like May in State ex rel. Williams-Scott, Braxton was the mayor of a municipality with less than 12,000 inhabitants whose presence at council meetings was counted towards establishing a quorum. Therefore, his failure to attend council meetings for 90 consecutive days resulted in his removal from office by operation of law.

When Braxton was removed by operation of law, a vacancy occurred in the office of Mayor. Section ll-40-25(e) of the Code provides that "[i]f the council or commission does not reinstate the removed elected municipal official pursuant to subsection (d), the council or commission shall fill the vacancy as provided by law." Ala. Code § 11-40-25(e) (Supp. 2022). Because that provision does not provide any specific procedures, we must look elsewhere for guidance on how to fill the vacancy. Newbern, whose population was less than 6,000 people for the 1970 federal decennial census, is a Class 8 municipality. Ala. Code § 11-40-12 (2008). In its opinion to Honorable James K. Lyons, Director, Alabama State Port Authority, dated Apr. 10, 2013, A.G. No. 2013-043, this Office held that Class 8 municipalities must follow section 11-44G-2 of the Code when filling a vacancy in the office of mayor. According to section ll-44G-2(2):

In the event of a vacancy from any cause in the office of mayor, the city council shall fill the vacancy either from its own membership or from without the membership of the city council. The person elected by the city council to fill the vacancy in the office of mayor shall be a qualified elector in the municipality and shall meet all other legal qualifications required by law for the performance of the duties of the office to which elected.

Ala. Code § ll-44G-2(2) (Supp. 2022) (emphasis added). Thus, the Newbern Town Council had the authority to fill the vacancy in the office of mayor by electing a qualified elector in the municipality.

CONCLUSION

If the mayor of a municipality fails or refuses to attend all regular or special called meetings of the council of the municipality for 90 consecutive days, he or she is removed from office by operation of law.

A Class 8 municipality may fill a vacancy in the office of mayor by vote of the municipal council, either from its own membership or from without the membership of the council.

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

Sincerely,

STEVE MARSHALL Attorney General

BEN BAXLEY,

Chief, Opinions Division