Oregon Advisory Opinions October 04, 1966: OAG 66-125 (October 4, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-125.

---

54

A person who has been recalled from public office can legally be a candidate for another office.

Your request for an opinion states that a person who was recalled from County Commissioner Position No. 1 on October 26, 1965, has now perfected a filing as candidate for County Commissioner Position No. 2.

You ask whether a person who has been recalled from County Commissioner Position No. 1 can legally be a candidate for Position No. 2.

When the incumbent of County Commissioner Position No. 1 was recalled from office, he was removed from that office for the particular term he was then enjoying. State of Kansas ex rel. v. Rose, (1906) 74 Kan. 262, 86 P. 296. Such removal did not go beyond County Commissioner Position No. 1 because the office itself is limited by the term. State ex rel. Thompson v. Crump et al., (1916) 134 Tenn. 121, 183 S.W. 505.

In Recall Bennett Committee v. Bennett et al., (1952) 196 Or. 299, 249 P. (2d) 479, the Oregon Supreme Court held that a city commissioner was not qualified to become a candidate for election to the unexpired term of the office from which he was recalled.

Although your inquiry was not reached in the Bennett case, at page 326 of the opinion, the court quoted with approval from 42 Am. Jur. 925, Public Officers, § 57, as follows in part:

"* * * The cases, with some exceptions, hold that a removal from office bars the removed officer from an election or appointment to fill the vacancy for the unexpired term, but that it does not disqualify him to take some other office or to be elected or appointed to a new term of the same office. * * *" (Emphasis supplied)

In People v. Ahearn, (1909) 196 N.Y. 221, 89 N.E. 930, the New York Court of Appeals held that one removed from a municipal office by the governor under statutory authority for maladministration therein was not eligible to reelection by the aldermen, under a statutory provision empowering them to fill a vacancy so caused for the unexpired term. The question was raised that since defendant's removal was to be construed as having the effect of barring him from appointment to the vacancy, whether it must also be regarded as having effected a general disqualification to hold any office. At page 934, the court said:

"* * * That argument does not require serious attention. The defendant was tried on charges affecting his administration of a certain office during a certain term, and as a punishment he was removed from that office. Because such removal barred him from immediate appointment to fill the vacancy for the unexpired term, it ought not to be seriously claimed that it disqualified him to take some other office or to be elected to a new term of the same office, neither of which were in any way involved in his trial and from neither of which he was removed. " (Emphasis supplied)

Although Article II, § 18, of the Oregon Constitution, provides for the recall of public officers by the legal voters, those recall provisions give the removal no greater effect than removal from the current term of office. Nor do we find qualifications written in the law which would bar a person from running for a term of office other than the one from which he was removed. The law leaves to the voters of Coos County the right to determine who is qualified to be elected to Position No. 2.

Therefore, it is our opinion that a person who has been recalled from County Commissioner Position No. 1 can legally be a candidate for Position No. 2.