When Virginia moved municipal elections from May to November under S.B. 1157, what happens to the mayor of Staunton (chosen by the city council, not the voters)? Can the council shift the mayoral election to January 2023, and does the current mayor stay in office until then?

Subject

An ordinance, adopted to comply with S.B. 1157, may transition the mayoral election by the Staunton City Council from July 1, 2022, to the Council's first meeting in January 2023. The current mayor of Staunton continues in office and may exercise the powers and duties of the office until their successor is chosen.

Plain-English summary

Staunton, like several Virginia cities, has a charter that says the city council picks the mayor from among its own members at the council's first meeting after taking office. Before S.B. 1157 (2021 Spec. Sess. I, ch. 103), council members were elected in May and took office July 1, so the mayor was elected each cycle on July 1. The current mayor was elected July 1, 2020, for a two-year term ending around June 30, 2022.

S.B. 1157 moved Virginia municipal elections from May to November starting after January 1, 2022. New council members elected in November 2022 take office January 1, 2023. The bill explicitly says councilmembers and popularly-elected mayors with terms ending June 30, 2022 stay in office until their successors qualify in January 2023. It does not address council-elected mayors like Staunton's.

The Staunton City Attorney asked the Attorney General two questions. First, can the city's transition ordinance shift the council's mayoral selection from July 1, 2022 to the council's first meeting in January 2023? Second, does the current mayor hold over until that January meeting?

The AG answered yes to both. The shift is required by the operation of S.B. 1157 (the council cannot have its "first meeting after taking office" until January 2023). And under Virginia's longstanding holdover rule, the incumbent mayor automatically continues in office until the successor is chosen and qualifies.

What this means for you

For Staunton City Council and the city attorney

The opinion concludes the shift of the council's mayoral selection to its first January 2023 meeting is required by operation of S.B. 1157, not optional, because the council cannot hold its "first meeting after taking office" until January 2023. It states the city may include that transition in its S.B. 1157 ordinance, and may memorialize the mayor's holdover there, but that the holdover is automatic and requires no affirmative city action.

For the current mayor of Staunton

You stay in office until the council selects your successor at its first January 2023 meeting. You exercise the full powers and duties of the office during that period. You don't need to be re-appointed or re-confirmed in any way.

For Staunton city councilmembers

When you take office in January 2023 after the November 2022 election, your first meeting is when the council picks the new mayor. That selection follows § 15.2-1422 and the city charter, both of which require the council to select a mayor from its membership at its first meeting after taking office.

For other Virginia cities with council-elected mayors

The AG's reasoning is general. If your city operates with a council-elected mayor and S.B. 1157 has moved your municipal elections to November, the same logic applies. Your council's mayoral selection moves to its first January meeting, and your incumbent mayor holds over in the meantime.

For voters

You did not lose anything in this transition. The mayor was always chosen by the council in Staunton's structure, not by direct election. The shift in timing is mechanical, driven by when council members take office.

Common questions

What did S.B. 1157 actually change?
It moved Virginia municipal elections from May (held in even years) to the November general election, starting with elections held after January 1, 2022. Terms of officers elected in November 2022 began January 1, 2023.

Why did Staunton need a separate opinion?
Because Staunton's mayor is elected by the city council, not by the voters directly. S.B. 1157 expressly addressed popularly-elected mayors but did not say anything about council-elected mayors. The Staunton city attorney needed clarity on whether the holdover rule applied and whether the council's mayoral selection should shift.

What is the holdover doctrine?
A long-standing common-law rule: in the absence of a constitutional or statutory prohibition, a public officer holds over after the end of their term until a successor is qualified. Virginia's Supreme Court endorsed it in Chadduck v. Burke, 103 Va. 694 (1905), noting that "the law abhors vacancies in public office." The rule is automatic, not contingent on board action, per Westphal v. City of Council Bluffs, 275 N.W.2d 439 (Iowa 1979).

Does the holdover mayor have the same powers as a regularly elected mayor?
Yes. The holdover officer "may continue to exercise the powers and duties of his office . . . until such successor has qualified."

Does the city's transition ordinance need to mention the mayoral holdover?
Not strictly. The holdover happens by operation of law. But the AG suggested the city "may memorialize" the holdover in its transition ordinance for clarity.

Does this opinion bind Virginia courts?
No. AG opinions are persuasive, not binding. But the holdover doctrine is well-settled in Virginia case law, so the underlying conclusion is on firm ground.

Background and statutory framework

The statutory hook is Va. Code § 15.2-1422, which provides that in cities and towns without a popularly-elected mayor, the governing body "shall elect one of its number" as mayor "at its first meeting after taking office." Under the Staunton City Charter § 5, the mayor serves a two-year term as president of council and as official head of the city.

S.B. 1157 (2021 Spec. Sess. I, ch. 103) amended Va. Code § 15.2-1400 and provided that "[n]otwithstanding the provisions of §§ 24.2-222 and 24.2-222.1, any city or town charter, or any other provision of law, general or special, beginning with any election held after January 1, 2022, elections for mayor, members of a local governing body, or members of an elected school board shall be held at the time of the November general election." The bill's enactment clause 2 directed any city currently holding May elections to enact a transition ordinance and held that incumbent council members and popularly-elected mayors with June 30, 2022 term ends continued in office until their successors qualified.

The AG read those S.B. 1157 transition provisions together with § 15.2-1422 and the city's charter to conclude that Staunton's mayoral selection must shift to the council's first meeting in January 2023. Because Virginia's holdover doctrine fills statutory gaps when an officer's term expires before a successor is qualified, the current mayor stays in office through that period.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 15.2-1400 (basic local governing structure; amended by S.B. 1157)
• Va. Code § 15.2-1422 (council selection of mayor at first meeting after taking office)
• Va. Code § 24.2-222; § 24.2-222.1 (election timing provisions referenced in S.B. 1157)
• 2021 Va. Acts Spec. Sess. I, ch. 103 (S.B. 1157)
• Chadduck v. Burke, 103 Va. 694 (1905)
• State ex rel. Landis v. Byrd, 120 Fla. 780 (1935)
• Westphal v. City of Council Bluffs, 275 N.W.2d 439 (Iowa 1979)
• 1972-1973 Op. Va. Att'y Gen. 234; 1980-1981 Op. Va. Att'y Gen. 4; 1985-1986 Op. Va. Att'y Gen. 64 and 250; 2013 Op. Va. Att'y Gen. 220 (holdover doctrine)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-037-Blair-issued.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

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 19, 2021

John C. Blair, Esquire
Staunton City Attorney
116 W. Beverley Street
Post Office Box 58
Staunton, Virginia 24402-0058

Dear Mr. Blair:

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

Facts and Applicable Law

You relate that prior to the passage of Senate Bill 1157, the City of Staunton held elections for City Council positions in May of even-numbered years. Newly-elected members of the City Council would assume office on July 1 following the election in May. On the new members' first day in office (July 1), the Council would hold an organizational meeting and elect a mayor from amongst the Council's membership, in accordance with § 5 of the City Charter and the directive in § 15.2-1422 that the Council select a mayor from among its membership "at its first meeting after taking office."

Pursuant to this framework, the current mayor of Staunton was elected by the Council on July 1, 2020, to serve a two-year term that is scheduled to expire on or about June 30, 2022.

The City of Staunton is governed by a seven-member Council, in which each member is elected to a term of four years. However, because the terms of the Council are staggered, the City holds municipal elections biennially. In any given election, either three or four Council seats are filled by popular election.

With the recent passage of Senate Bill 1157, municipal elections in Virginia have been moved from May to November, beginning with elections held after January 1, 2022. The terms of municipal officers elected in November will commence on January 1, 2023, under the provisions of the legislation. As applied to Staunton, Senate Bill 1157 requires that the date of the next municipal election be moved from May 2022 to the general election in November 2022, and that officers elected to the City Council in November 2022 will assume office on January 1, 2023, provided they duly qualify.

Senate Bill 1157 recognizes that inevitably, when election dates are shifted, existing terms in office are affected. The legislation therefore contains a clause stating that current councilmembers whose terms are scheduled to expire on June 30, 2022, shall continue in office "until their successors have been elected at the November general election and have been qualified to serve." The legislation also directs that a popularly-elected mayor whose term is scheduled to expire on June 30, 2022, shall continue in office in the same manner.

The legislation, however, does not specify whether mayors who are elected by a City Council rather than being popularly elected should continue in office when (1) their terms expire on or about June 30, 2022, and (2) their successors would otherwise be elected by Council on July 1, 2022. As you note, the mayor of Staunton is elected by the City Council rather than popularly elected. Your questions below relate to how the tenure of the mayor of Staunton is affected by the language of Senate Bill 1157 and the transition to November elections.

Issues Presented

Your questions are as follows:

1. Does the language in Senate Bill 1157 authorize the City of Staunton to transition its mayoral election by City Councilors from July 1, 2022, to its first meeting in January 2023?

2. May the mayor continue in office beyond the expiration date of their term until the election of a new mayor?

Discussion

1. The language of Senate Bill 1157 requires the City of Staunton to transition its mayoral election by City Councilors from July 1, 2022, to the Council's first meeting in January 2023.

As mentioned above, the term of the current mayor is scheduled to expire on or about June 30, 2022. Prior to the passage of Senate Bill 1157, the Council was scheduled to elect a successor on July 1, 2022, the date of its "first meeting after taking office" following the May election. However, given the change in municipal elections from May to November, the Council cannot have its "first meeting upon taking office" until January 1, 2023, at the earliest. Therefore, by operation of law, the Council is required to transition its mayoral election by City Council from July 1, 2022, to the Council's first meeting in January 2023. In my opinion, the City of Staunton may include this transition in its ordinance enacted pursuant to Senate Bill 1157, as a necessary incident of its transition of municipal elections from May to November.

2. The current mayor of Staunton continues in office until the next election by city councilors in January 2023.

The conclusion that the City is required to shift the election of the mayor by the City Council to January 2023 leads naturally to your next question, which is whether the current mayor continues in office until a new mayor is selected. As discussed, Senate Bill 1157 does not specify whether a mayor who is elected by a City Council shall hold over in office. "As a general rule, however, in the absence of a constitutional or statutory prohibition, a public officer holds over after the conclusion of his term until the qualification of his successor." "The purpose of the hold-over rule is to prevent a hiatus in government pending the election or qualification of a successor officer." "A necessary implication of this rule is that such member may continue to exercise the powers and duties of his office . . . until such successor has qualified."

I am aware of no constitutional or statutory provision that would prohibit the current mayor of Staunton from continuing in office until their successor is chosen in January 2023. In my opinion, therefore, the mayor continues in office and may exercise the powers and duties of the office until their successor is chosen by the Council at its first meeting in January 2023.

An "incumbent officer immediately becomes a holdover officer upon expiration of his term. It does not require any affirmative act of the appointing body, acquiescence by it, or appointment by implication; it is automatic; by operation of law." However, in my opinion, the City may memorialize the hold-over of the mayor in its ordinance effectuating the transition of elections from May to November.

Conclusion

In my opinion, the Staunton City Council is required to transition its mayoral election by City Council from July 1, 2022, to the Council's first meeting in January 2023. Moreover, the current mayor of Staunton continues in office and may exercise the powers and duties of the office until their successor is chosen by the Council at its first meeting in January 2023.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General