Colleagues:

11 O.S., Sec. 8-109 (A.) states:
“When a vacancy occurs in an office of an elected municipal official, except the mayor, the governing body shall appoint, by a majority vote of the remaining members, a person to fill the vacancy until the next general municipal election, .........., to serve until a successor is elected and qualified.  Any vacancy shall then be filled at the next general municipal election............ by election of a person to complete the balance of any unexpired term.  If the vacancy has not been filled within sixty (60) days after it occurs, the governing body shall call for a special election.............for the purpose of filling the vacancy for the duration of the unexpired term unless said vacancy occurs or said election would occur within one hundred twenty (120) days prior to the first day of the filing period for the next general municipal election........... .  If a vacancy is not filled by the special election ........., it shall be filled by appointment as provided for in this subsection.”

I represent a small Oklahoma town where individuals are elected only as board members in a general municipal election, after which and in accordance with the town’s ordinances, the duly elected members elect one of their number as mayor.  If a member who is not the mayor resigns, then filling the vacancy per Section 8-109 (A.) makes sense.  But, what if the member that resigns was chosen as mayor after the general municipal election by fellow board members?  The phrase office of an elected official in Section 8-109 (A.) refers only to the election of a person as board member since in this town, a person is not elected ‘as mayor’ in the general municipal election.

What does “except the mayor” mean?  I recognize that most vacancies in office occur when a member resigns from the governing body or passes away or becomes incompetent, etc., but sometimes there are reasons for the mayor to resign only from the position of mayor, which carries extra responsibilities that the member may not be able or willing to perform, while remaining a member of the governing body.  At that point, the remaining members can elect a new mayor in accordance with the provisions in the ordinances.  In my case, the mayor intends to resign as mayor and may, subsequently, for other reasons, choose to resign from the governing body.

But, if the member decides to resign from his status as a governing board member, the member also ‘resigns’ as mayor.  At that point, there is a vacancy in an office of an elected municipal official but I can’t see a clear path for filling the vacancy created since the member resigning is the mayor and Section 8-109 (A.) ‘excepts’ the mayor from the replacement process (except the mayor).

Steven Holloway
hipshot.steven@gmail.com

In the phrase “elected municipal official,” I construe the word “elected” to qualify both the phrase “municipal official” and the word “mayor.”  Otherwise, it would create an absurd result such as under your facts.  So if the mayor is chosen from among the elected officials, then his resignation from his position as a member would allow his or her position to be filled under that section.

Jon Miller
City of Mustang

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From: Oama oama-bounces@lists.imla.org on behalf of Steven Holloway hipshot.steven@gmail.com
Sent: Monday, September 14, 2020 2:59:43 PM
To: Ok Association of Municipal Attorneys Oklahoma Association Municipal Attorneys oama@lists.imla.org
Subject: [Oama] Resignation of Mayor/Vacancy in office

Colleagues:

11 O.S., Sec. 8-109 (A.) states:
“When a vacancy occurs in an office of an elected municipal official, except the mayor, the governing body shall appoint, by a majority vote of the remaining members, a person to fill the vacancy until the next general municipal election, .........., to serve until a successor is elected and qualified.  Any vacancy shall then be filled at the next general municipal election............ by election of a person to complete the balance of any unexpired term.  If the vacancy has not been filled within sixty (60) days after it occurs, the governing body shall call for a special election.............for the purpose of filling the vacancy for the duration of the unexpired term unless said vacancy occurs or said election would occur within one hundred twenty (120) days prior to the first day of the filing period for the next general municipal election........... .  If a vacancy is not filled by the special election ........., it shall be filled by appointment as provided for in this subsection.”

I represent a small Oklahoma town where individuals are elected only as board members in a general municipal election, after which and in accordance with the town’s ordinances, the duly elected members elect one of their number as mayor.  If a member who is not the mayor resigns, then filling the vacancy per Section 8-109 (A.) makes sense.  But, what if the member that resigns was chosen as mayor after the general municipal election by fellow board members?  The phrase office of an elected official in Section 8-109 (A.) refers only to the election of a person as board member since in this town, a person is not elected ‘as mayor’ in the general municipal election.

What does “except the mayor” mean?  I recognize that most vacancies in office occur when a member resigns from the governing body or passes away or becomes incompetent, etc., but sometimes there are reasons for the mayor to resign only from the position of mayor, which carries extra responsibilities that the member may not be able or willing to perform, while remaining a member of the governing body.  At that point, the remaining members can elect a new mayor in accordance with the provisions in the ordinances.  In my case, the mayor intends to resign as mayor and may, subsequently, for other reasons, choose to resign from the governing body.

But, if the member decides to resign from his status as a governing board member, the member also ‘resigns’ as mayor.  At that point, there is a vacancy in an office of an elected municipal official but I can’t see a clear path for filling the vacancy created since the member resigning is the mayor and Section 8-109 (A.) ‘excepts’ the mayor from the replacement process (except the mayor).

Steven Holloway
hipshot.steven@gmail.commailto:hipshot.steven@gmail.com