Town Elections Are Over, But Is There a Vacancy?

By Susan Slack, Esq.

Q. What if no one filed to run for an elected office, or someone declines to serve after being elected? How is the position filled?
A.
In the situation where no one has filed to run for the office, 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. It is incorrect to assume that the position must 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.

Q. Who has authority to fill vacancies in elected positions?
A.
To determine who has authority to fill the 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, any citizen of the town may petition the superior court to fill the vacancy. In addition to selectman, there are specific statutes relating to filling vacancies for: 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 budget committee, see RSA 32:15, VII; and to fill vacancies on the land use boards (planning board, zoning board of adjustment, historic district commission), see 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.

Q. What is the legal definition of “vacancy?"
A.
“Vacancy" is defined in RSA 652:12. A vacancy occurs if, after the election and before the end of the term, the person elected dies, resigns or no longer has domicile in the jurisdiction in which he or she was elected. Also, a vacancy occurs if: a court determines that the elected person is insane or mentally incompetent; the elected person fails or refuses to take the oath of office as required by RSA 42:2 or fails or refuses to give or renew an official bond if required by law; and if the elected person has his or her election voided by court decision or Ballot Law Commission decision.

Another provision of the statute deems it a vacancy in an elected office when the elected person is convicted of a crime that disqualifies him or her from holding office. This statute 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.

Q. What if an elected person already holds another incompatible office?
A.
RSA 669:7 lists several offices that no one person may hold while at the same time holding any of the other listed offices. For example, a person cannot be a selectman and at the same time hold the office of treasurer, moderator, trustee of trust funds, collector of taxes, auditor or highway agent. Several other positions are listed in the incompatibility statute, which also prohibits a full-time town employee from holding the office of selectman at the same time. Occasionally, someone will file to run for an office, and get elected, even though he or she also holds one of the incompatible offices listed in the statute. 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, creating a vacancy, 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.