STATUTORY CITY COUNCIL: VACANCY IN OFFICE: Person elected to fill remainder of
unexpired mayoral term may assume office upon receipt of certificate of election. Minn. Stat.
§ 412.02, subd. 2, 2a.

                                                                                              471-M


                                       November 23, 1999



Patrick J. Kelly
Stephen Kelly
BANNIGAN & KELLY, P.A.
Maplewood City Attorneys
1750 North Central Life Tower
445 Minnesota Street
St. Paul, MN 55101-2132

Dear Messrs. Kelly:

       In your letter you present substantially the following:

                                             FACTS

               In November 1997, A was re-elected at regular election to the position of
       Mayor of Maplewood, a statutory city, for a 4 year term. Before taking the oath in
       January of 1998, Mayor A was appointed District Court Judge and resigned.
       Therefore a vacancy occurred in the position of Mayor. Pursuant to Minn. Stat.
       § 412.02, subd. 2a, the Council filled the vacancy by appointing Mayor B to the
       pos1t10n. Because Mayor A resigned before January 1, 1998, the tenure of
       Mayor B ran from January 1998 until qualification of a successor elected at the
       next general election, held November 2, 1999. There was roughly 2 years left of
       the original term of Mayor A.

              You then ask substantially the following:

                                           QUESTION

       When a person is appointed to fill a vacancy in the office of mayor of a statutory
       city, and an election is held to fill the unexpired term of that position, when does
       the term of the appointed mayor end and the term of the mayor elected to fill the
       unexpired term begin?
Patrick J. Kelly
Stephen Kelly
Page 2.



                                           OPINION
       In our opinion the person elected to fill the unexpired mayoral term is eligible to qualify1
and assume office upon receipt of an election certificate, and the tenure of the appointee
terminates when the elected person so qualifies.         Minn. Stat. § 412.02 subd. 2 and 2a
(Supp. 1999) provide in pertinent part:

                Subd. 2. Term. Terms of elective officers shall commence on the first
       Monday in January following the election at which the officer is chosen. All
       officers chosen and qualified as such shall hold office until their successors
       qualify.

               Subd. 2a. Vacancy. Except as otherwise provided in subdivision 2b,2 a
       vacancy in an office shall be filled by council appointment until an election is held
       as provided in this subdivision. In case of a tie vote in the council, the mayor
       shall make the appointment. If the vacancy occurs before the first day to file
       affidavits of candidacy for the next regular city election and more than two years
       remain in the unexpired term, a special election shall be held at or before the next
       regular city election and the appointed person shall serve until the qualification of
       a successor elected at a special election to fill the unexpired portion of the term. 3
Pursuant to subdivision 2 the "terms" of elective city offices begin on the first Monday of
January following election.4 However, in the case of filling a vacancy, as here, the time of


1
  Qualifying for public office requires the taking of the oath of office (See Minn. Stat. § 358.05
(1998) and in some cases may require posting of a bond. However, we are not aware of any
bonding requirement for the mayor of a statutory city.
2
  Subdivision 2b pertains to circumstances creating a potentially temporary vacancy. That
subdivision would not apply here.
3
  These subdivisions were amended in 1999. Act of April 20, 1999, ch. 75 § 2, 1999 Minn. Laws
216; Act of May 7, 1999, ch. 132, § 43, 1999 Minn. Laws 530, 543. These amendments, which
took effect on August 1, 1999, do not affect our opinion in this matter.
4
  See also Minn. Const. art. VII § 7 which provides:

             Sec. 7 Official year of state. The official year for the state of Minnesota
        commences on the first Monday in January of each year and all terms of office


                                                              (Footnote Continued On Next Page.)
Patrick J. Kelly
Stephen Kelly
Page 3.




commencement of the "term" of office is not at issue. There is no question that the term of the
office of mayor commenced in January of 1998 and will end in January of 2002. The election
held in November of 1999 was to choose someone to serve for the remainder of that term.
Therefore, the January date has no special significance in these circumstances. By the terms of
subdivision 2a, the appointed mayor may only serve until qualification of the successor elected to
fill the remainder of the term. There would seem no impediment to the person recently elected
taking the oath and assuming office at any time after receiving a certificate of election.
       While we are aware of no previous opinions directly addressing this question as applied
to Minn. Stat. § 412.02 subd. 2a, this conclusion is consistent with a number of previous
opinions that have construed similar statutory language as applied to vacancies in other offices.
See e.g., Ops. Atty. Gen. 161-A-25, February 6, 1958 (school board); 126H, September 2, 1950
and November 8, 1952 (county board) and 371-A-5, October 21, 1944 (railroad and warehouse
commission). The September 2, 1950 opinion acknowledged that some previous opinions had
reached a different conclusion. However it noted that:

                The opinions contrary to this view have been based upon the provision in
        Art. 7, Sec. 9 of the State Constitution, that all terms of office shall terminate on
        the first Monday in January of each year. It appears clear to us that this applies
        only to the statutory term for which officers are elected and does not apply to
        vacancies which are filled pending an election for an unexpired term of office.

Thus, the previous inconsistent opinions were reversed.




        terminate at that time. The general election shall be held on the first Tuesday after
        the first Monday in November in each even numbered year.
Patrick J. Kelly
Stephen Kelly
Page 4.




          For these reasons it is our opinion that the person elected on November 2, 1999 may now
qualify and assume office if he or she has received a certificate of election. Upon that person's
qualifying, the tenure of appointed Mayor B will tenninate.


                                                 Very truly yours,

                                                 MIKE HATCH
                                                 Attorney General
                                                 State of Minnesota




                                                 KENNETH E. RASCHKE, JR
                                                 Assistant Attorney General

                                                 (651) 297-1141

AG:288959, V. I
