Oregon Advisory Opinions December 11, 1974: OAG 74-98 (December 11, 1974)
Collection: Oregon Attorney General Opinions
Docket: OAG 74-98
Date: Dec. 11, 1974
Advisory Opinion Text
OAG 74-98.
May a county having a home rule charter adopt an ordinance providing for a special election to fill a vacancy in the office of county commissioner?
ANSWER GIVEN
The terms of the county's charter will control as to whether such an ordinance may be enacted
ORS 263.210 provides that when a vacancy occurs in a county office,
We are asked whether a home rule county may nevertheless provide by ordinance that a vacancy in the office of county commissioner shall be filled by election.". . . some suitable person shall be appointed by the county court or board of county commissioners to perform the duties of the office . . ."
Article VI, Section 10 of the Oregon Constitution, authorizing adoption by a county's voters of a home rule charter, provides that the charter:
and goes on to specifically state that the charter:". . . may provide for the exercise by the county over matters of county concern. . . ."
This appears to indicate that the charter may specify the method of filling vacancies, i.e. election or appointment, or it may authorize adoption of an ordinance so specifying.". . . shall provide directly, or by its authority, for the number, election or appointment , qualifications [etc] . . . of such officers as the county deems necessary. . . ." (emphasis supplied)
If any question remains it appears to have been settled by the cases. In Schmidt v. Masters , 7 Or App 421, 428, 490 P2d 1029 (1971), petition for review denied 1974, the court said:
"We conclude that with reference to matters of local concern, the authority of a county under a home rule charter may be as broad as that of a city."
In so saying, the Court of Appeals has indicated that the criteria determining the scope of powers of a city under a city charter adopted under Article XI, Section 2, Oregon Constitution would be applicable in establishing the extent of a county's authority under a county charter adopted under Article VI, Section 10, Oregon Constitution.
The leading Oregon Supreme Court case expressing the extent of home rule authority is State ex rel Heinig v. City of Milwaukie , 231 Or 473, 373 P2d 680 (1962). There the court held that the method of hiring and firing city personnel (in this case, firemen) was a matter of predominately local concern
and therefore a state law attempting to regulate such matters was void since it conflicted with city legislation.
We see no reason why the conclusion would not equally apply where a home rule county seeks to establish special elections as a means of filling vacancies in positions on its governing body. The state statute for filling such vacancies, ORS 236.210, would thus not be construed as paramount to local legislation adopted under the home rule authority granted by Article VI, Section 10.
ORS 203.035 (made applicable to all counties, charter or not, by ORS 203.030) provides:
"(1) The governing body or the voters of a county may by ordinance exercise authority within the county over matters of county concern, to the fullest extent allowed by Constitutions and laws of the United States and of this state, as fully as if each particular power comprised in that general authority were specifically listed in ORS 203.030 to 203.065.
"(2) The power granted by this section is in addition to other grants of power to counties, shall not be construed to limit or qualify any such grant and shall be liberally construed, to the end that counties have all powers over matters of county concern that it is possible for them to have under the Constitutions and laws of the United States and of this state."
We do not construe this as an attempt by the state to remove restrictions on county government which have been placed there by a charter adopted under Article VI, Section 10. Such a charter is the constitution, in a sense, of a home rule county when it comes to matters of predominantly local concern. The legislature could not by statute place decision-making power in
local matters in any authority other than that chosen by the people of the county when they adopted their charter under Article VI, Section 10.
For example, Multnomah County in Chapter IV, § 4.50 of its charter provides for filling a vacancy in the position of county commissioner by appointment.
"(1) The Board of county commissioners shall promptly fill any vacancy in an elective office of the county.
"(2) If the office becomes vacant less than 21 months after the beginning of the term of office of the last person elected to the office,
(a) the term of office of the appointee shall run until the beginning of the first odd-numbered year after the vacancy occurs and
(b) at the first general November election after the vacancy occurs a person shall be elected to fill the vacancy for two years.
The board of county commissioners shall by ordinance prescribe one or more procedures by which candidates to fill such a vacancy may be nominated and elected for the two-year term.
"(3) If the office becomes vacant 21 months or more after the beginning of the term of office of the person last elected to the office, the term of office of the appointee shall be the remainder of the term of office of the electee."
To change the method of filling vacancies would first require an amendment of the county's charter (provided for in Chapter XI thereof).
Another charter could simply provide that the governing body may determine by ordinance the method of filling vacancies.
We conclude, for reasons stated above, that the question of whether a home rule county may enact an ordinance providing for filling of vacancies in the position of county commissioner by special election can only be answered by looking at the particular charter involved.