When a person is appointed to fill a vacancy on a Virginia city council, board of supervisors, or school board, do they keep the seat through the rest of the original term, or only until the next election cycle, or only until the next person can be appointed?

Plain-English summary

Delegate Scott Wyatt asked the Attorney General a procedural question about what happens at the end of an interim appointment to a Virginia local governing body or elected school board. The scenario: someone vacates a seat partway through a term. The remaining members of the council, board of supervisors, or school board appoint a replacement under Va. Code § 24.2-228. The petitioner asked whether that interim appointee continues in office until the regular term expires, or until a successor wins a special election under § 24.2-682, or until some other point.

Attorney General Jason Miyares concluded that the interim appointee's authority terminates when the body has the power to appoint a successor for a new term. Specifically:

• If the elected successor qualifies through the special election under § 24.2-682, the appointee leaves when that successor qualifies.
• If the original term ends and a new term begins before the special election successor qualifies, the appointee can hold over only until the body's next available appointment vote (under § 24.2-200's "duties continue until successor qualifies" language).
• If the officer-elect for the new term fails to qualify, a new vacancy arises, and the appropriate body (made up of the members in office at that time, not the body that made the prior interim appointment) makes a new interim appointment under § 24.2-228.

The opinion turns on a careful read of the statutory text. Section 24.2-226 recognizes that vacancies can arise either when an officer-elect "does not take office" (a present-tense verb, not a future-tense expectation) or "after an officer begins his term." A vacancy cannot be anticipated; it has to actually exist before the appointment authority kicks in. So the body that made the original interim appointment cannot pre-emptively appoint someone for the next term. Each new term's potential vacancy requires its own process.

Miyares also relied on Fleming v. Anderson (1948), which described the right to hold over as "a contingent right designed to meet a public necessity. It becomes operative only when the necessity arises, that is, when there is no one with the present better right to occupy the office." Once a successor with a "better right" exists (a duly elected officer who has qualified, or a duly appointed successor for the new term), the holdover ends.

What this means for you

Interim appointees on a city council, board of supervisors, or school board

Under this opinion, your interim authority ends at the first of these to happen: the special-election winner qualifies under § 24.2-682, or the original term ends and the body votes on a successor for the new term. If the term you are filling expires before a special-election successor has qualified, § 24.2-200 lets you continue performing the duties of the office, but only until the body makes an appointment for the new term.

Members of a body making an interim appointment

The opinion holds that the appointment power exists only once a vacancy has actually occurred; the body cannot fill a future-term vacancy in advance. An appointment under § 24.2-228 runs only until the special election fills the seat or until the term ends and a new appointment is made for the new term. If the term turns over and the officer-elect fails to qualify, the resulting new vacancy is filled by the body as constituted at that time, which may include the prior interim appointee.

Clerks to a local council, board of supervisors, or school board

The opinion distinguishes two situations that involve potentially different appointing bodies and different end points: a vacancy arising during the original term (interim authority ends at the special-election successor's qualification or at term end) and a vacancy arising at term turnover when an officer-elect does not take office (filled by the body in office at that time). The two are governed by the same statutory framework but, on the opinion's reading, require separate appointment votes.

Candidates for a Virginia local office

If you win a special election under § 24.2-682 to fill a vacancy, the interim appointee leaves once you qualify. If you won the regular general election for a new term and do not take office at the start of that term, the seat is vacant as of the start of the term, and the body in office at that time appoints an interim officer under § 24.2-228.

Local government attorneys

The opinion supplies the sequence: a vacancy occurs; the remaining members may appoint under § 24.2-228; the appointee serves until the special-election successor qualifies, or, if the term turns over first, until the body votes on an appointment for the new term. It treats a vacancy occurring during the prior term and a vacancy occurring at term turnover (officer-elect's failure to take office) as separate events, each requiring its own appointment vote.

Common questions

Q: I'm an interim appointee. The election to permanently fill my seat is nine months away. When do I leave?
A: When the elected successor qualifies after winning the special election. Until then, you serve. If your original term expires before the special election, you can hold over until the body votes on a successor for the new term.

Q: Can the body that appointed me also appoint someone for the next term in advance?
A: No. The AG concluded that vacancy authority kicks in only after a vacancy occurs. The body cannot pre-fill a future-term vacancy that has not yet materialized. A new appointment vote is required at the time the new vacancy actually arises.

Q: The officer-elect won the election but never took office for the new term. What happens?
A: The opinion treats an officer-elect who "does not take office" as creating a vacancy once the new term has begun. At that point the body in office at that time makes a new interim appointment under § 24.2-228 to fill the new-term vacancy.

Q: What if I am an interim appointee and I'm also up for re-election? Do I keep my seat if I lose?
A: Once the regular term ends, your interim authority ends. Whoever is elected for the new term takes the seat upon qualifying. If your seat ended at the end of your interim term and you weren't re-elected, you go.

Q: Can two people claim the seat at the same time?
A: No. The AG cited Fleming v. Anderson (1948) for the proposition that "the right to hold over is a contingent right." It "becomes operative only when the necessity arises, that is, when there is no one with the present better right to occupy the office." The "better right" rule prevents two simultaneous claimants.

Q: Does this apply to charter-city offices?
A: § 24.2-228(A) applies "notwithstanding any charter provisions to the contrary." So yes, even charter-city councils follow the same interim-appointment framework for vacancies.

Q: What about elected constitutional officers like sheriffs and clerks of court?
A: This opinion addresses local governing bodies and elected school boards specifically. Constitutional officer vacancies are governed by separate provisions. Consult § 24.2-225 and the specific provisions for the office in question.

Background and statutory framework

Virginia local governing bodies (city councils, town councils, county boards of supervisors) and elected school boards are filled by November general elections, with terms commencing on the January 1 succeeding election (or July 1 for May general elections). § 24.2-218 to § 24.2-223 set out the term lengths and election cycles.

When a vacancy occurs partway through a term, § 24.2-228 authorizes the remaining members of the body to appoint a qualified voter from the election district to fill the vacancy on an interim basis (the opinion notes the appointment is to be made "within 45 days of the office becoming vacant"). The seat is ultimately filled by special election under § 24.2-682. The interim appointee fills the seat between the vacancy and the special-election successor's qualification.

§ 24.2-228(A) provides that the interim appointee "shall hold office only until the qualified voters fill the vacancy by special election pursuant to § 24.2-682 and the person so elected has qualified." This is the outer limit of the interim appointee's authority for the current term.

§ 24.2-200 provides the holdover rule for officers generally: terms commence on January 1 (or July 1 for May elections) succeeding their election, but officers' duties continue until a successor qualifies. The combined effect of § 24.2-228 and § 24.2-200 is that the interim appointee can hold over after the original term's expiration, but only until a successor with a "better right" exists. The Supreme Court of Virginia in Fleming v. Anderson (1948) crystallized this principle.

The Wyatt question focuses on what happens when a special election does not produce a qualified successor by the time the original term expires. The AG concluded that the body in office at the start of the new term has the authority (and the responsibility) to make a new appointment for the new term under § 24.2-228. The prior interim appointee can serve as holdover only in the gap between the term's start and the body's next appointment vote.

Citations and references

Statutes:

• § 24.2-200, Va. Code Ann. (terms and holdover)
• § 24.2-226, Va. Code Ann. (vacancy)
• § 24.2-228, Va. Code Ann. (interim appointment)
• § 24.2-682, Va. Code Ann. (special election)

Cases:

• Fleming v. Anderson, 187 Va. 788 (1948) (holdover as contingent right)
• City of Colonial Heights v. Loper, 208 Va. 580 (1968) (vacancy upon failure to meet qualification conditions)
• Vaughan v. Johnson, 77 Va. 300 (1883) (officer-elect failure to qualify creates vacancy)
• Burnett v. Brown, 194 Va. 103 (1952) (no qualification = vacancy)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-061-Wyatt-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

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
December 21, 2023
Virginia Relay Services
800-828-1120
7-1-1

Jason S. Miyares
Attorney General

The Honorable Scott Wyatt
Member, Virginia House of Delegates
Post Office Box 365
Mechanicsville, Virginia 23111

Dear Delegate Wyatt:

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 ask whether an individual appointed to a local governing body or elected school board to fill a vacancy pursuant to Code § 24.2-228 remains in that position until the regular term of the vacated office expires or until a successor ultimately is qualified under a special election pursuant to Code § 24.2-682.

Applicable Law and Discussion

Members of local governing bodies and members of elected school boards are elected to specified terms of office that are established by the General Assembly. The General Assembly also has provided for interim appointments when vacancies in such offices occur. You ask whether an interim appointment extends beyond the expiration of the term of the office the person was appointed to fill.

Code § 24.2-226 directs that "[a] vacancy in any elected local office, whether occurring when for any reason an officer-elect does not take office or occurring after an officer begins his term, shall be filled as provided by § 24.2-228." In turn, § 24.2-228 provides that, when a vacancy occurs, "the remaining members of the body or board, respectively, within 45 days of the office becoming vacant, may appoint a qualified voter of the election district in which the vacancy occurred to fill the vacancy." Upon appointment of an interim officer to fill the specific vacancy, "the person so appointed shall hold office only until the qualified voters fill the vacancy by special election pursuant to § 24.2-682 and the person so elected has qualified."

Your inquiry thus implicates well-established principles of statutory construction. The "primary objective" in construing a statute is "to ascertain and give effect to legislative intent, as expressed by the language used in the statute." Legislative intent, in turn, must be gathered from the words used in the statute, and "where possible, every word of a statute must be given meaning." "When a statute's language is plain and unambiguous, courts are bound by the plain meaning of that language." Nevertheless, statutes are not to be read as isolated fragments of law, but rather related statutes should be construed in pari materia, as part of a harmonious whole or system.

The plain language of § 24.2-228 empowers the "majority of the remaining members" of the local governing body or elected school board to make an interim appointment "[w]hen a vacancy occurs." Code § 24.2-226 recognizes that a qualifying vacancy can occur "when[ever] an officer-elect does not take office" as well as "after an officer begins his term[.]" Although the general procedures of § 24.2-228 govern irrespective of the basis of the vacancy, a vacancy can be filled using those procedures only once it occurs and not beforehand. Rather, the relevant "remaining members" are to make their appointment "within 45 days of the office becoming vacant[.]"

Critically, for purposes of § 24.2-228, a vacancy cannot be said to have occurred for a term that has not yet started. As acknowledged by the language of § 24.2-226, an officer-elect can be deemed to have not taken office only after the term of office has commenced, at which point the "vacancy occurs." More generally, a vacancy in a new term arises upon failure of a succeeding elected officer to qualify for office as of the beginning of a term or shortly thereafter. The operative phrase related to officers-elect is "does not take office," which is in the present, rather than future tense, and thus precludes anticipatory vacancy fillings.

Once the vacancy does occur, the "majority of the remaining members of the [local governing] body or [elected school] board", as those bodies are constituted at the time of such vacancy, is authorized to make an interim appointment for the newly vacant position.

Consequently, when an interim appointment has been made to fill a vacancy that occurs during a given term due to circumstances arising after a candidate has won election to the following term but before the officer-elect assumes office, the interim appointment will be effective only through the end of the officer's current term. That appointee "shall continue to discharge the duties" of the office until a successor qualifies. When an officer-elect fails to qualify as the successor, a new successor will be available when a majority of the remaining members of the body or board existing at that time exercises its authority under § 24.2-228 to make a further interim appointment to fill the vacancy that has occurred by virtue of the officer-elect's failure to take office. Any ability of the appointee selected to fill the vacancy during the prior term to "hold over" terminates at that point.

Conclusion

Accordingly, it is my opinion that an individual appointed to a local governing body or elected school board to fill a vacancy pursuant to Code § 24.2-228 may remain an interim appointment in said office only until such time as a majority of the remaining members of the body or board may vote on an appointment for the new term of office; it is this person who shall remain in office until an ultimate successor is qualified under a special election pursuant to Code § 24.2-682.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General