Oregon Advisory Opinions December 22, 1966: OAG 66-151 (December 22, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-151.

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99

No petition for recall of an officer may be circulated until such officer has held his office for six months of the particular term from which he is sought to be recalled.

You advise as follows:

"Sometime in 1966 an individual was appointed to fill a vacancy in the office of county sheriff. By January 2, 1967, he will have served in that appointed capacity for approximately eight months.

"The same individual was elected to the office of county sheriff on November 8, 1966."

You cite Article II, § 18, of the Oregon Constitution, dealing with recall, which provides:

"* * * No such [recall] petition shall be circulated against any officer until he has actually held his office six months * * *" (Emphasis supplied)

and ask:

"Does the eight months appointive service count toward office holding or does the six months period as required in the Oregon Constitution begin when the man's new term of office commences?"

The answer to your question will depend upon whether the word "office" in Article II, § 18, supra, should be construed to mean the office of sheriff of the county as it continues from term to term, or to mean in a more literal sense the four-year office to which the individual was elected in November.

In Recall Bennett Committee v. Bennett et al., (1952) 196 Or. 299, 249 P. (2d) 479, the Oregon Supreme Court was presented with the question of whether or not an official recalled from office could be a candidate in the ensuing election to fill the unexpired portion of his term. The court held that he could not, citing as analogous several cases in which persons had been removed from elective office by judicial ouster. Such persons were held ineligible to serve, either by election or appointment, in the offices from which they had been ousted during the remainder of the term for which they had been initially elected.

The court also cited the case of State ex rel. v. Crump, (1916) 134 Tenn. 121, 183 S.W. 505. In this case certain city officials had been removed from office by judicial ouster on November 4, 1915. Two of them, however, had been reelected the previous April for terms to begin January 1, 1916. The Tennessee court held that the two were ousted only from the term they were serving at the time of the ouster, and were eligible to assume office for their new terms beginning January 1, 1916, because:

"* * * If we go beyond the current term, then we have to deal with another office." 134 Tenn. at 131-132, 183 S.W. at 507.

This language was quoted with approval in the Bennett case, supra, and the Oregon court went on to say:

"* * * In harmony with the cited cases we hold that a public office is an entity and that the duration of the term of office is a part of the entity." 196 Or. at 329, 249 P. (2d) at 493.

Also see our Opinion No. 6186, dated October 4, 1966.

On the basis of this reasoning we must conclude that the word "office" as used in Article II, § 18, supra, is limited to the term a person is serving at the time recall is instituted, because, as said in the Bennett case, "the duration of the term is a part of the entity." The courts have in effect defined "office," with respect to recall proceedings, to mean "term" and therefore a person has not "actually held his office six months" until he has served six months of the term from which he is being recalled.

It is, therefore, our opinion that the sheriff in question would not be subject to recall from a term of office until he has held office for six months of such term.