When someone is elected to fill a city council vacancy, do they take office right away or wait for the regular term start date?

Plain-English summary

The Maitland City Attorney asked whether someone elected to fill a vacancy on the city council begins serving upon election or must wait until the fourth Monday in April, when regular terms start under the charter.

The Attorney General's office noted that it generally does not issue opinions interpreting only local charters, and refers those questions to the local government's own attorney. As a courtesy, it offered general observations on how the two charter provisions fit together. Article II, section 2.06(c) addresses vacancies: a vacancy is first filled by a successor the remaining council members appoint, who serves until the next general election, at which an election is held "for the balance of the unexpired term." Article II, section 2.01(c) sets the three-year term of office beginning on the fourth Monday in April. The office read the April provision as governing when terms begin and end, not as governing vacancies. So a person elected to fill a vacancy is not starting a fresh three-year April term; that person is serving only the remainder of an existing term that already began in April when the original council member was elected. The office pointed to AGO 2010-51 for the related point that the mere expiration of a term is not one of the circumstances that creates a "vacancy."

Currency note

This opinion was issued in 2011. 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

This was an informal response. The office's stated practice is not to render formal opinions that turn solely on the interpretation of local codes, ordinances, or charters, and to refer such questions to the local government attorney. It provided observations to be helpful rather than a binding conclusion.

The observations rested on reading two Maitland charter sections together. Section 2.06(c) lays out the vacancy mechanism: appointment by the remaining members until the next general election, then an election for the balance of the unexpired term. Section 2.01(c) sets the regular three-year term starting the fourth Monday in April. The office treated section 2.01(c) as concerning the duration of terms, not the filling of vacancies, so a vacancy-filler steps into the remainder of an already-running term rather than beginning a new one. The letter cited AGO 2010-51 for the proposition that the expiration of a term is not itself a "vacancy."

Common questions

Q: Does a council member elected to fill a vacancy wait until April to take office?
A: Under the office's reading of the charter, no. That person serves the balance of the existing unexpired term, which already began in April when the original member was elected, rather than starting a new April-to-April term.

Q: Why didn't the Attorney General just decide the question?
A: The office generally does not issue formal opinions interpreting local charters and refers those questions to the local government's attorney. It offered informal observations instead.

Q: Is an expired term the same as a vacancy?
A: The letter cited AGO 2010-51 for the point that the expiration of a term of office is not one of the specified circumstances that creates a "vacancy."

Citations and references

The opinion interpreted provisions of the Maitland city charter (Article II, sections 2.01(c) and 2.06(c)) and referenced a prior Attorney General opinion (AGO 2010-51). It did not turn on any specific Florida statute or reported court decision.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/filling-vacancies-when-officer-begins-serving
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8172

Original opinion text

Mr. Clifford B. Shepard

Maitland City Attorney

2300 Maitland Center Parkway

Suite 100

Maitland, Florida 32751

Dear Mr. Shepard:

The Office of Attorney General Pam Bondi has received your letter requesting the opinion of this office regarding an interpretation of the city charter. Specifically, you request whether an individual elected to fill a vacancy on the city council may begin serving upon election or must wait until the fourth Monday in April.

As discussed in this office’s statement regarding Attorney General Opinions, a copy of which is enclosed for your review, opinions of this office generally are not issued on questions requiring an interpretation only of local codes, ordinances or charters rather than the provisions of state law. Such requests are referred to the attorney for the local government in question.

In an effort to be of some assistance, however, I would generally note that Article II, section 2.06(c) of the charter appears to be a method of addressing vacancies on the city council by providing that the vacancy on the council shall be filled by a successor appointed by the remaining members of the city council who serves until the next general election at which time "there shall be elected a city council member for the balance of the unexpired term." (e.s.) Article II, section 2.01(c) of the charter provides that the term of office for city council members is three years, beginning from the fourth Monday in April of the year elected. This section of the charter appears to relate to the terms of office, when they begin and end, and not to the filling of vacancies. The individual filling the vacancy is not serving a three year term which begins in April, but rather is serving only the balance of an existing term which already began on the fourth Monday in April in the year when the vacated council member was elected. Cf. Attorney General Opinion 2010-51, stating that the expiration of a term of office is not one of the specified circumstances under which a "vacancy" occurs in that office.

I trust you will understand that the duties of this office are prescribed by law. I hope, however, that the above informal observations may be of assistance.

Thank you for contacting the Attorney General’s Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

Enclosure: Statement Policy