Filling a Vacancy in Local Government

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

A significant number of citizens are required to fill the positions of authority in a municipality. Some are elected, such as selectmen and the town clerk. Others may be appointed, such as members of the conservation commission or recreation commission. Town meeting determines whether land use board members, the police chief, the fire chief, the road agent, the auditor, the overseer of public welfare, the treasurer, the tax collector and others are elected or appointed. In NHMA’s Municipal Officials Directory, we have abbreviations for 187 different categories of elected and appointed positions. Given this diversity, it is inevitable that one or more positions in your municipality will not be filled or may become vacant in any given year. This article will discuss the legal definition of the word “vacancy,” and how vacant positions are filled.

The term “vacancy” is defined in RSA 652:12 for elected officials, and includes nine ways a vacancy may occur after an election but before the end of the term of office. The following six are straightforward in their application but are relatively rare:

• The person elected dies after having taken the oath of office;
• The person fails or refuses to give or renew an official bond if required by law;
• The person elected has his or her election voided by court decision or Ballot Law Commission decision;
• A court determines that the elected person is insane or mentally incompetent;
• The elected person is convicted of a crime that disqualifies him or her from holding office. This section must be read together with RSA 607-A:2, which states that a person sentenced for a felony, from the time of sentencing until final discharge, may not vote or become a candidate for public office or hold public office. A public office held at the time of sentencing is forfeited as of the date of sentencing, at which time a vacancy occurs in that office; and,
• A member of the general court (representative or senator), who as a result of military or national guard service is unable to perform legislative duties for longer than 180 consecutive days, and local officials request the governor and council to declare a vacancy.

The last three events are less clear in their application:

• The elected person resigns from the office. For a state representative, RSA 14-A:2 provides that a member resigns by delivering a written resignation to the presiding officer of the legislative body, and that it is effective upon delivery. However, for a municipal official, it is not clear how a resignation is communicated, to whom, or when it is effective. Questions are frequently raised when a desire to resign is communicated orally, or by electronic means, and then later retracted by the official. This may occur during or following a contentious meeting, and the person may later reconsider their stated desire to resign from the position. Questions are raised as to whether the public body must accept the resignation in some manner, or whether it must honor the official’s desire to reconsider and retract a resignation. It is also unclear how to handle a situation where the official states a desire to resign, to be effective on some date that could be weeks or months in the future. We have no guidance in statute or case law, and often must counsel the remaining members of the public body that the departing official should be asked to clarify his or her intent to continue in the position as the best way to resolve the question. This is best if done in writing, if the person will cooperate with the request.
• The person no longer has “domicile” in the jurisdiction in which he or she was elected. This term “domicile” is defined in RSA 21:6 and :6-a, and may be difficult to apply to elected officials, officials seeking to qualify voters, and officials seeking to determine whether the person may register an automobile in the municipality. A person chooses a domicile by actions that demonstrate a current intent to reside in a place for the indefinite future to the exclusion of all other places. A temporary absence from a place does not destroy domicile if there is an intent to return to the place. Important life events, such as residential change following a divorce, changing from a residence that is owned to a residence that is rented, full time residence at a school, part year residence in other states, and family job changes create challenging questions in this area. Each case must be reviewed on its own facts.
• A vacancy occurs if the elected person fails or refuses to take the oath of office as required by RSA 42:2. The winner may not want to fill the position. It is incorrect to assume that the position must then be offered to the person receiving the second most votes, and so on until someone agrees to accept the position. If the winner, whether by write-in vote or by virtue of his or her name appearing on the ballot, declines to serve, a vacancy exists in that elected position. The elected person has six days to appear before the town clerk to take the oath of office after receiving written notice that he or she has won the election. RSA 42:6; RSA 659:12, IV. If they do not, the position is vacant.

In addition to these methods, a position may be open and on the ballot, but no person files to run for it in accordance with RSA 669:19. At the conclusion of the election, the moderator should declare the person receiving the most write-in votes to be the winner of the election. If there were no write-in votes cast, a vacancy exists in that position.

Occasionally, someone will run for a position and get elected to serve, even though he or she also holds one or more other offices in the municipality. It is sometimes possible to hold such multiple positions, but RSA 669:7 lists several pairs of offices that no one person may hold at the same. For example, a person cannot be a selectman and at the same time hold any of the offices of treasurer, moderator, trustee of trust funds, collector of taxes, auditor or highway agent. A full-time town employee may not also hold the office of selectman. In these situations, the moderator should not declare that person’s election void because of an incompatibility. Rather, the moderator should declare the winner of the election based on the number of votes cast.

The winner should be notified of his or her election and, at that time, the incompatibility issue should be raised so that the person may determine which of the two positions he or she prefers to fill. He or she may resign from the position currently held prior to assuming the new office, or can choose to remain in the current office, creating a vacancy in the office to which he or she was just elected. At this point, the vacancy statutes should be consulted to determine who has authority to appoint a replacement.

The timing of a vacancy may be important. For example, if the vacancy occurs at or near the conclusion of the filing period for candidates specified in RSA 669:19, the position may be placed on the official ballot to be filled at the upcoming annual town meeting. If, however, the vacancy occurs after the filing period closes, the vacancy cannot be filled at the upcoming election. It is filled by appointment , and then placed on the official ballot for the next year’s annual meeting for election to the unexpired portion of the term.

To determine who has authority to fill a vacancy, look for a statute that relates to that specific position. For most municipal positions, see RSA 669:61 through :75. For example, RSA 669:63 states that a vacancy on the board of selectmen is filled by the remaining members of the board, and if they fail to fill the position, a petition may be filed with the superior court to fill the vacancy. In addition to selectman, there are specific statutes relating to moderator, supervisors of the checklist, town clerk, town clerk-tax collector, tax collector, auditor, treasurer, trustee of trust funds and highway agent. To fill vacancies on the official budget committee, see RSA 32:15, VII; the conservation commission, RSA 36-A:3, and land use boards (planning board, zoning board of adjustment, historic district commission), RSA 673:11 and 673:12.

If there is no statute relating to a particular position, see RSA 669:75, which governs filling vacancies in “other offices,” including constable, sewer commissioner, assessor, overseer of public welfare, library trustee and other optional offices where no method of filling vacancies has been provided by town meeting vote. In all these cases, the statute gives the board of selectmen authority to fill the vacancy. To determine who has authority to fill vacancies in village district positions, see RSA 670:12; and for school district positions, see RSA 671:33.

Paul Sanderson is Staff Attorney for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.