When every seat on an Arkansas city council is empty, can the Governor fill them?

Plain-English summary

Governor Mike Beebe wrote to the AG about the City of Fisher, an Arkansas city of the second class where every seat on the city council was vacant. The normal way to fill an alderman vacancy, A.C.A. § 14-44-104(a), requires the remaining aldermen to elect a successor. With no remaining aldermen, that statutory mechanism deadlocked.

The AG concluded:

1. The Governor probably can appoint under Ark. Const. art. 6, § 23. That provision says when an office becomes vacant "and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have the power to fill the same by granting a commission." Although the Arkansas Supreme Court in Hagins v. Bullock (1909) said Section 23 "refers to other than municipal offices," that opinion is over 100 years old, internally contradictory, and has never been cited on the point. The AG considered it of little weight. Three earlier AG opinions (97-265, 90-028, 87-333) had concluded Section 23 does apply to municipal offices when no statutory mode is available.

2. "No mode is provided" includes situations where the statutory mode is impossible to use. A method that cannot accomplish the result in the present circumstances does not provide a "mode."

3. The power is discretionary, not mandatory. Section 23 says the Governor "shall have the power to fill" the vacancy. "Have the power to" is not the same as a directive to act. Under Ford v. Keith, statutory construction discourages reading words as superfluous, so "have the power to" must mean something distinct from a flat duty.

4. Scope: minimum-to-restore versus all-at-once. Two paths are defensible. Appointing all five vacancies at once would be safer if the Governor wants to fill them all; there was never a moment when remaining aldermen could have acted. Appointing seriatim would terminate the Governor's authority at the point where remaining aldermen could legally fill the rest under § 14-44-104 plus the majority-of-quorum rule in § 14-42-103(a). The minimum approach (appointing just enough to restore the statutory method) was, the AG suggested, the more conservative course and more likely to survive judicial review.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Three constitutional and statutory pieces interlock here:

• Ark. Const. art. 6, § 23 is the Governor's gap-filling power. Vacancy + no mode = Governor commissions an appointee whose term runs until the next general election fills the seat.
• Ark. Const. art. 12, § 3 vests the General Assembly with the power to organize cities by general laws. The Hagins court read this as taking municipalities out of Section 23.
• A.C.A. § 14-44-104(a) is the second-class city alderman-vacancy statute: remaining council members elect a successor by majority vote.
• A.C.A. § 14-42-103(a) requires the majority vote to be of a "quorum of the whole number of the governing body." For a five-member council, that means at least three voting members.

Hagins v. Bullock is the case the AG had to reckon with. There the Governor commissioned the appellant as mayor under Section 23 after the elected mayor resigned. The appellant himself then called a special election, lost, and refused to surrender the office. The Arkansas Supreme Court ruled for the elected appellee. Part one of the opinion says the framers left municipal organization to the legislature; part two says the appellant "held the office without legal authority." But the court also noted that statutes provided "a mode" for filling the mayor's vacancy, which would be irrelevant if Section 23 categorically excludes municipal offices. The AG read the contradiction as evidence the case doesn't actually decide the universal-exclusion question.

Common questions

What does "city of the second class" mean in Arkansas?

Arkansas classifies municipalities by population. Cities of the first class are larger, cities of the second class are smaller. The classification affects which statutes apply for things like aldermanic procedures. Fisher was a city of the second class with a five-member council. The relevant filling statute, A.C.A. § 14-44-104(a), is the second-class city version.

Why didn't the council just hold a special election?

Special elections aren't automatic. They need a body authorized to call them. For aldermen, that's typically the remaining council. With zero remaining members, there was nobody at the local level with authority to issue the call. That's exactly the gap Section 23 was designed to fill.

Could the Governor appoint his political allies?

The opinion didn't address partisanship. Constitutionally, the Governor's power under Section 23 to grant a commission is just that, a commission. The appointee serves until the next general election fills the seat by popular vote. So political considerations matter, but the commission is short-term.

Did Fisher actually have zero council members?

Governor Beebe's letter said all the seats on the council were vacant. The AG accepted that as the operating premise. The mechanism for arriving at zero (mass resignations, deaths, removals) doesn't affect the analysis; what matters is whether the statutory filling mechanism can work.

What's the difference between this and the AGFC rulemaking situation in Op. 2014-115?

Op. 2014-115 deals with an as-yet-unenacted constitutional amendment that might let the legislature review commission rules. This opinion deals with a clear constitutional grant (Section 23) and a clear statutory gap. The first is forward-looking analysis the AG declined to predict; the second is backward-looking statutory interpretation the AG could perform.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2014-090
October 8, 2014

The Honorable Mike Beebe
Governor
State Capitol, Suite 250
Little Rock, Arkansas 72201

Dear Governor Beebe:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

This is my opinion on your questions about your constitutional authority or duty to fill city council vacancies in a city of the second class.

You state your understanding that all seats on the City of Fisher council are vacant. You ask whether the Arkansas Constitution, article 6, section 23, authorizes or requires you to fill one or more vacancies and, if so, how many vacancies you may or must fill.

In my opinion, you may, but are not required to, fill at least the minimum number of vacancies required to permit the statutory method of filling the remaining vacancies to be implemented, and at most all the vacancies.

The Law

The constitutional provision at issue ("Section 23") gives you conditional power to fill vacancies in public office:

When any office, from any cause, may become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have the power to fill the same by granting a commission, which shall expire when the person elected to fill such office, at the next general election, shall be duly qualified.

A legislative enactment generally empowers the remaining aldermen to fill council vacancies:

Whenever a vacancy occurs in the office of alderman in any city of the second class, at the first regular meeting after the occurrence of the vacancy, the city council shall proceed to elect, by a majority vote of the council, an alderman to serve for the unexpired term.

This statute cannot be used here, of course, as Fisher has no aldermen.

Can Section 23 Ever Apply to Municipal Office?

Section 23 purports to apply to "any office," but the Arkansas Supreme Court has stated that it "refers to other than municipal offices." A predecessor in this office rendered an opinion that may be interpreted as characterizing the case as adopting the rule that Section 23 cannot apply to municipal office, regardless of the presence or absence of a "mode."

As you note in your request, however, other predecessors earlier rendered three opinions concluding that Section 23 does indeed apply to municipal offices when no "mode is provided."

There is no clear answer to the question whether Section 23 is universally inapplicable to municipal office. In my view, however, it is more likely than not that a court would uphold your appointment of an alderman under Section 23 if made in circumstances where no "mode is provided."

In Hagins, the Governor, relying on Section 23, commissioned the appellant to serve the unexpired term of the mayor who resigned. On the day of his appointment, the appellant apparently issued a proclamation calling a special election to fill the office. The appellee was the only candidate whose name appeared on the ballot, and he won the election, receiving all the votes cast, even the appellant's. The election commission certified the appellee as the winner, and the Governor issued him a commission. The appellant refused to surrender the office, and the appellee sued to oust him. The Court affirmed the trial court's judgment for the appellee.

The opinion is in two numbered parts. In the first part, the Court may be read to have said that Section 23 can never apply to a municipal office because "[t]he framers of the Constitution left the entire matter of the organization of cities to the Legislature" by providing in the Constitution that "[t]he General Assembly shall provide, by general laws, for the organization of cities . . . ." One taking such a view would apparently maintain that the Constitution gives to the legislature all power with respect to municipalities and cannot be read to give to the Governor any power with respect thereto, even in cases where the legislature has not acted. In other words, it should be irrelevant under such a view whether the legislature has actually provided any method of filling vacancies. But the Court, citing the statutes under which the election was held and the appellee elected, noted that "[a] mode is provided by statute for filling vacancies in the office of mayor." Again, that fact is irrelevant if the Court's decision truly means that the constitutional provision can never apply with respect to municipal offices. The Court did not explain why it noted a mode's presence, but there seems to be no logical reason for the Court to have done so except to explain why Section 23 was not applicable in that case.

In the second part of the opinion, the Court held that the appellant was "in no position to complain of a failure to observe" various requirements of the election laws allegedly not complied with in connection with the election because he "held the office without legal authority . . . ." This pronouncement suggests that the Court indeed was of the view that Section 23 did not permit the appointment. But the statutes under which the election was held required a mayor's proclamation, and the appellant himself apparently issued that proclamation. Thus the Court implicitly recognized the appellant's authority as mayor, at least to the extent of issuing the proclamation, while expressly denying his authority.

In my view, the Court made clear neither the holding (beyond affirming the lower court) nor the rationale underlying it. I see no compelling reason to think that the constitutional grant of legislative power to "provide by general laws, for the organization of cities" necessarily means that the Governor cannot act under Section 23, a provision that applies on its face to a vacancy in "any" office. Also, Hagins is over 100 years old and has never been cited by the Court on the point at issue here. I give it little weight in considering whether Section 23 can ever apply to municipal offices. The decision's ambiguity may explain my predecessors' disagreement about its meaning.

Again, I see no compelling reason to take Hagins to mean that Section 23 can never apply to municipal offices. Is there a good reason to conclude that it can apply to municipal offices? I think so. In cases where the General Assembly simply has provided no way to fill a municipal vacancy, a court's choice would be between, on the one hand, interpreting Section 23 to provide a way to fill a vacancy whose continuance might compromise the city's operations and governance and, on the other, concluding that the office must remain vacant regardless of the consequences. Although there can be no assurance, I think it is more likely than not that a court would uphold a Governor's action in filling a vacancy under Section 23 if other law truly provided no way to fill the vacancy.

When Is a "Mode . . . Provided"?

Having decided that Section 23 likely does apply to municipal offices in cases where no "mode is provided," the question becomes whether a "mode is provided" in a case like this one, in which there is an applicable statutory or constitutional provision that is nonetheless impossible of implementation in the circumstances. Here, there obviously is a statutory scheme for filling the vacancy but, because it requires action by the remaining aldermen, and there are no aldermen, it does not provide an effective way to fill the vacancies.

Predecessors in this office have opined in effect that no "mode is provided" within the meaning of Section 23 when the statutory method of filling the vacancy is impossible to implement in the circumstances, and thus that Section 23 permits the Governor to act.

I see no compelling reason to disagree with my predecessors on this point, and some reason to agree. A "mode" is a "manner of . . . doing something," a way of accomplishing a result. A statute that cannot be employed in the circumstances to accomplish the desired result does not, in my view, provide a "mode" in that case. In my opinion, therefore, under the facts presented, no mode of filling the vacancies is provided, and you accordingly may act under Section 23.

Is Section 23 Discretionary or Mandatory?

Section 23 says that the Governor "shall have the power to fill" a vacancy described therein. In my view, the provision is discretionary. Granting someone the power to do something is not synonymous with directing the person to do the thing. If Section 23 were intended to be mandatory, it could have said merely that the Governor "shall fill" the vacancy. The words "have the power to" would be superfluous under such an interpretation, a result discouraged by a standard rule of statutory construction.

May You Fill All the Vacancies, or Only the Minimum Number Necessary to Permit the Statutory Mode to Function?

As noted above, a statute authorizes the remaining members of a city council to fill vacancies. Another statute provides that while a majority vote of the remaining members of the council is generally sufficient to fill a vacancy, there must in any case be a majority vote of a "quorum of the whole number of the governing body . . . ."

One of my predecessors, without expressly considering your question, twice stated his opinion that the Governor was empowered to fill all three vacancies on a five-member council (the two remaining members not constituting a majority of a quorum). I believe a court might agree in a case where the Governor filled all the vacancies at once. In such a case, there would never have been a moment at which the remaining aldermen would have been sufficient in number to fill the vacancies under the statute. If, on the other hand, the Governor were to fill the vacancies seriatim, I believe his constitutional authority would end when there were a sufficient number of aldermen to fill the vacancies under the statute.

Your appointment of the minimum number of aldermen necessary to permit them to fill the remaining vacancies under the statute likely would be seen as the more conservative course and as more consistent with the spirit of Section 23, which appears to be to provide a backstop applying only where and to the extent legislative or other constitutional provisions are absent or ineffective. A court might, as a result, be that much more inclined to uphold your appointments if limited to the minimum number necessary to permit the statutory mode to function.

Assistant Attorney General J.M. Barker prepared this opinion, which I approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JMB:cyh