If a Portsmouth mayor is removed in a recall election, does the city charter control how the vacancy is filled, or does a newly amended state vacancy statute control?

Plain-English summary

Petitioners had filed to recall the Mayor of Portsmouth. The Circuit Court set the recall election for July 13, 2010. Just before that, on July 1, 2010, a new state law (§ 24.2-226, as amended in 2010) was going into effect, changing how local elected vacancies get filled. Two state senators asked the AG: if the mayor is removed, does the new state statute control how the office gets filled, or does Portsmouth's charter?

The AG said the Portsmouth City Charter controls. The charter sets up an unusual mechanism: on the same ballot as the recall question, voters also see the names of candidates who have qualified to run for the office. If the recall succeeds (majority approves removal), the candidate "receiving the highest number of the votes cast shall be declared elected." Vacancy and replacement happen at the same election.

The new § 24.2-226 is more general. It applies after a vacancy has occurred, and tells the local governing body to petition the circuit court for a writ of election within 15 days. That general procedure is not in conflict with the charter; it's just a different mechanism for a different situation. Both can be reconciled: the charter handles the recall-with-simultaneous-replacement case, and § 24.2-226 kicks in only if the recall removes the mayor but no candidate on the recall ballot qualifies within ten days, leaving a true vacancy.

That conclusion lines up with a long-standing Virginia rule: "a later statute which is general does not repeal a former one that is particular unless negative words are used, or the acts are so entirely inconsistent that they cannot stand together." Scott v. Lichford, 164 Va. 419 (1935). The 2010 amendment did not say it repealed special charter provisions.

Currency note

This opinion was issued in 2010. 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.

Section 24.2-226 and various recall and vacancy provisions have been amended since 2010. The Portsmouth City Charter has been updated as well. Anyone analyzing a current Virginia recall or local-office vacancy should look at the current text of the relevant charter and statute, not the 2010 versions.

Common questions

How does a "recall with simultaneous replacement" work?
Under the Portsmouth charter, the ballot has two parts. First, voters answer yes or no on whether to remove the named official. Second, the ballot lists candidates who have qualified to fill the office if the recall succeeds. If a majority votes to remove and one or more candidates were on the ballot, the highest vote-getter among the candidates is elected to the seat immediately upon canvass.

Why doesn't the new state statute override the charter?
Because the general state vacancy statute and the city charter aren't in direct conflict. They address different situations: the charter addresses recall-with-simultaneous-replacement; the state statute addresses vacancies generally. Virginia courts try to harmonize statutes when possible, especially when a later general statute appears to overlap with prior special legislation.

When does the state statute come into play?
Only as a backstop: if the recall removes the officeholder and the prevailing candidate on the recall ballot fails to qualify within the 10-day window the charter provides, then the office is "deemed vacant" and § 24.2-226 takes over.

What if there are no candidates on the recall ballot at all?
The opinion is specifically about the case where "one or more candidates meet the requirements to be listed on the recall ballot." If no candidates qualify for the recall ballot, the charter's simultaneous-replacement mechanism cannot operate, and the general vacancy procedure would presumably control. The opinion does not directly resolve that scenario.

Why does Virginia treat charters differently from general statutes?
City charters are special legislation. The Virginia Supreme Court has long held that "laws existing for the benefit of particular municipalities ordinarily are not repealed by general laws relating to the same subject-matter." The legislature has to be explicit if it wants a general statute to displace special charter provisions, and it wasn't explicit here.

Background and statutory framework

Virginia recall elections are governed in part by general statutes and in part by individual city charters. The Portsmouth charter set up a specific mechanism in which recall and replacement happen at the same election: the recall ballot presents both the recall question and the names of qualifying candidates, and the candidate receiving the highest number of votes is declared elected if the recall succeeds.

Section 24.2-226 generally addresses how vacancies in local elected offices are filled. The 2010 amendment added specific timing requirements: within 15 days of the vacancy, the governing body must petition the circuit court for a writ of election to fill the vacancy.

The general rule of statutory construction at play: when a special law and a general law cover related ground, they should both stand if reasonably possible. Scott v. Lichford, 164 Va. 419 (1935); Kirkpatrick v. Board of Supervisors, 146 Va. 113 (1926); City of Richmond v. County Board, 199 Va. 679 (1958). The presumption against modifying or repealing prior special legislation "applies with particular force in the case of general legislation enacted subsequently to special, local legislation on the same subject."

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 24.2-226
• City of Portsmouth Charter (recall provisions)
• Scott v. Lichford, 164 Va. 419, 422-23, 180 S.E. 393, 394 (1935)
• Kirkpatrick v. Board of Supervisors, 146 Va. 113, 125, 136 S.E. 186, 190 (1926)
• City of Richmond v. County Board, 199 Va. 679, 685, 101 S.E.2d 641 (1958)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-054-Lucas_Quayle.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

June 25, 2010

The Honorable L. Louise Lucas
Member, Senate of Virginia
P.O. Box 700
Portsmouth, Virginia 23705-0700

The Honorable Frederick M. Quayle
Member, Senate of Virginia
P.O. Box 368
Suffolk, Virginia 23439

Dear Senators Lucas and Quayle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire, in the context of a recall election for the Mayor of the City of Portsmouth ordered pursuant to the recall procedures set forth in the Portsmouth City Charter, whether an election to fill a possible vacancy in the office of Mayor should be governed by that City's Charter, or whether it will be governed by a recently amended provision of the Code of Virginia if one or more candidates meet the requirements to be listed on the recall ballot for possible election to the office of Mayor.

Response

It is my opinion that, in the context of a recall election for which one or more candidates meet the requirements to be listed on the recall ballot for possible election to the City of Portsmouth office that is the subject of the recall, a possible vacancy in that office would be filled pursuant to the recall provisions of the City Charter of the City of Portsmouth.

Background

You note that a petition has been filed to recall the Mayor of the City of Portsmouth. The Circuit Court for the City of Portsmouth has scheduled the recall election for July 13, 2010. You further relate that, during its 2010 session, the General Assembly modified the existing statute dealing with how vacancies in local elected offices should be filled. That new law goes into effect on July 1, 2010. The City Charter for the City of Portsmouth contains a provision addressing recall elections and how a vacancy should be filled should a recall election result in the removal of an officeholder.

Applicable Law and Discussion

Section 24.2-226 does not specifically address recall elections. Rather, it provides a general procedure for filling vacancies in local government offices after those vacancies have occurred. Under its provisions, as amended by the General Assembly this year, within 15 days of the occurrence of the vacancy, the governing body must petition the circuit court to issue a writ of election to fill the vacancy. The circuit court then must issue a writ of election "promptly, which shall be no later than the next general election unless the vacancy occurs within 90 days of the next general election in which event it shall be held promptly but not later than the second general election." The City Charter for the City of Portsmouth, in contrast, provides a special procedure for filling an office simultaneously with a recall by specifying that the recall ballot present to the voters both the question whether the named officer shall be removed from office and below that question the names of the candidates to fill the office should the officer be removed. If a majority of citizens approve the recall, then "the candidate receiving the highest number of the votes cast shall be declared elected."

The guiding principle governing the construction of charter provisions and general statutes is that conflicts between the two should be avoided if reasonably possible. The conflict between the two statutes must be clear and the provisions of the two so inconsistent with each other that both cannot prevail, before the prior statute will be held to be repealed or inoperative.

Applying these principles, it is my opinion that there is no conflict between § 24.2-226, as amended, and the Portsmouth City Charter. Both can be reasonably construed to give full force and effect to each. The Code provision states a general rule that comes into play only when there is a vacancy in an elected local office. Under the City Charter, the recall procedures set forth a special rule for a recall election in which the voters simultaneously (i) determine whether to remove the office holder who is the subject of the recall and (ii) select the successor to that office holder from among candidates listed on the recall ballot. If the majority of votes cast in the recall election on the question of removal be affirmative, the office holder who is the subject of the recall is deemed removed upon the announcement of the official canvass of the election, and the candidate on the recall ballot receiving the highest number of votes is declared elected. The Charter also provides that, in the event the successor of the officer removed fails to qualify within 10 days after receiving notification of his election, "the office shall be deemed vacant." Thus, in the context of this recall election, the provisions of § 24.2-226 for filling a vacancy in a local office would come into play only if the recall election resulted in the removal of the officeholder and no prevailing candidate from the recall ballot qualified to assume the office within the 10-day window set forth in the Charter.

Moreover, it is settled law that

[a] later statute which is general does not repeal a former one that is particular unless negative words are used, or the acts are so entirely inconsistent that they cannot stand together. Thus laws existing for the benefit of particular municipalities ordinarily are not repealed by general laws relating to the same subject-matter. Stated in different phrase, where the subsequent general law and prior special laws, charter or ordinance provisions do not conflict, they both stand, but this result must depend, of course, upon the legislative intent which is to be ascertained from an examination and comparison of the whole course of legislation relating to the subject under consideration.

The changes made by the General Assembly in 2010 do not evince a clear intent by the legislature to displace more specific provisions contained in a city charter.

Conclusion

Accordingly, it is my opinion that, in the context of a recall election for which one or more candidates meet the requirements to be listed on the recall ballot for possible election to the City of Portsmouth office that is the subject of the recall, a possible vacancy in that office would be filled pursuant to the recall provisions of the City Charter of the City of Portsmouth.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General