Oregon Advisory Opinions March 13, 1974: OAG 74-22 (March 13, 1974)

OAG 74-22.

HJR 22 (1973 Regular Session) proposes a constitutional amendment which allows qualifications for the office of county assessor to be established by law. If the constitutional amendment passes in November 1974, an amendment to ORS 204.016 which establishes such qualifications would also become operative. Oregon Laws 1973, ch 538, §§ 1, 3. If HJR 22 fails, the present qualifications for county assessor would remain in effect. These qualifications, applicable to all county officers except sheriff, coroner and surveyor,

are merely that county officers be electors of the county. Or Const art VI, § 8.(fn1)

Thus a candidate for county assessor who meets the present qualifications may be nominated in May and elected in November. If HJR 22 passes in the same election, however, becoming effective within a month upon proclamation by the Governor (Or Const art XVII, § 1), may he take office in January 1975 although he fails to meet the new qualifications?

Oregon Laws 1973, ch 538, § 2 provides that the new qualifications "shall not apply to any assessor in office on the operative date of this Act." Section 3 provides that the Act shall become operative upon passage of the constitutional amendment; technically, not on election day, but upon the Governor's proclamation, which follows canvass of the votes by the Secretary of State. The canvass must be completed within 30 days. ORS 254.120(2). In any event,

the new requirements will be fully effective in early December, a month before beginning of the term to which the person has been elected, a month before he is "in office." The exemption accordingly does not apply.

The assessor-elect would thus not be able to take office in January, and the incumbent would hold over until a successor is appointed.

This result, though it seems drastic, is clearly required, and it is also clearly within the authority of the legislature.

The legislature could even abolish the office. Given authority to establish qualifications for an office, it could change those qualifications in mid-term, with the result that an incumbent who does not qualify would, in the absence of a savings clause, be out of office. The vacancy would occur immediately upon the happening of the event, i.e. effectiveness of new qualifications which the incumbent could not meet. Fehl v. Jackson County , 177 Or 200, 161 P2d 782 (1945). ORS 236.010 provides:

"(1) An office shall become vacant before the expiration of the term if:

". . . .

"(g) The incumbent ceases to possess any other qualification required for election or appointment to such office."

The qualifications (if HJR 22 is passed) will become mandatory in December 1974; an assessor-elect who fails to meet the qualifications cannot take office in January 1975.

Should such a person be barred from candidacy, to avoid the futility of campaigning, counting votes, and certifying

election of a person who cannot take office? Election officials cannot permit the names of persons unqualified for office to be placed on the ballot, or to remain there after a disqualification is discovered. McAlmond v. Myers , 262 Or 521, 500 P2d 457 (1972). But on filing day, on primary election day, and on general election day, such a person (if an elector of the county) would be fully qualified, and would be eligible for a place on the ballot. There is only a possibility that the person may become disqualified in the future; there is always the possibility that a qualified candidate may become disqualified at some future date, before or after taking office. Such a person cannot be deprived of a place on the ballot.

We have noted that ch 538, § 2 makes an exeption from the requirements for ". . . any assessor in office on the operative date of this Act." But for this provision, every incumbent assessor who could not meet the qualifications would be out of office on the date of the Governor's proclamation, whether his term has one month or two years and one month remaining.(fn2)

This exception or savings clause is clearly valid and reasonable, as it applies to the remaining portion of an incumbent assessor's term, to avoid an immediate wholesale

turn-over of office, in many cases merely for a month. However, we construe the exception to create more traditional "grandfather rights" in any incumbent assessor; in effect, an alternative method of qualification. An assessor in office would also thus qualify for purpose of future terms. We note, without analysis or conclusion, that it could be asserted that this preferential treatment of in-office assessors would be in violation of Or Const art I, § 20, as a privilege not equally available to all citizens on the same terms.(fn3)

We accordingly conclude that if a person is "in office" on the December 1974 day of the Governor's proclamation that HJR 22 has been adopted by the people, he is eligible not only to continue in office but also to serve in any succeeding term to which he is elected in November 1974 or subsequently, whether or not he qualifies under amended ORS 104.016.

1 In any case in which an office is created and qualifications are prescribed by the constitution, the legislature cannot prescribe additional qualifications unless this is specifically authorized by the constitution. The office of county assessor is not constitutional created: The assessor is merely one of "[s]uch other county . . . officers . . . as may be prescribed by law." Or Const art VI, § 7. But in State v. Welch , 198 Or 670, 259 P2d 112 (1953), relating to an office created by the constitution, it is stated that the rule applies to offices created or authorized by the constitution.

Home rule counties are specifically authorized to designate their own necessary officers and prescribe their qualifications by charter. Or Const art VI, § 10. HJR 22 and the qualifications which would be established under the amended ORS 204, 016 would not be applicable to home rule counties.

2 The exception would also apply to a person appointed to the office of assessor immediately prior to the Governor's proclamation; there is no length of service requirement.

3 An argument in favor of this "grandfather" right is that the legislature could reasonable find that experience as a county assessor is equivalent to status as a "certified appraiser" or "appraiser trainee" under amended ORS 204.016.