Legal
Q and A How to Fill a Vacancy on an Elected Board By Jonathan Cowal, Municipal Services Counsel
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ow that election season is over and we are reaching the summer months, it is unfortunate yet inevitable that some towns may experience vacancies in their elected positions. Local officials can unexpectedly resign, move out of town or even pass away, leaving their position vacant and in need of replacement. The process for filling a vacancy can depend on how the vacancy came about and what position has been left vacant. This article will cover some of the basics when it comes to vacancies. Q. What constitutes a vacancy? A. The term “vacancy” is defined in RSA 652:12 when it comes to elected officials. The statute lists several ways a vacancy can occur after an election, but before the end of the term of office. They are as follows: 1. The elected official dies, resigns, or ceases to have domicile in the state or the district from which they were elected. 2. A court determines that the elected person is insane or mentally incompetent. 3. The elected person is convicted of a crime that makes them ineligible for office. 4. The person fails or refuses to take the oath of office or to give or renew an official bond if required by law. 5. The person elected has their election voided by a court or Ballot Law Commission decision. 6. This person is a member of the general court of New Hampshire and is called to active military service or service that causes them to be unable to perform their duties.
As you can probably guess, some of these circumstances are rare occurrences. However, it is fairly common for people to resign, no longer have domicile in the state or district where they were elected and sometimes even refuse to take the oath 36
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of office. When one of those circumstances occurs, it is important to know what next steps to take. Q. What happens when someone resigns? A. When it comes to municipal officials, there is no clear procedure for resignation laid out in the statutes. This can sometimes cause confusion when someone orally states that they want to resign, say after a contentious meeting, and then later changes their mind. It is also common for someone to announce their resignation but indicate that their resignation won’t take effect until some date in the future. These situations can all cause confusion and there is little legal authority to turn to for clarification. The best practice would be to have a policy in place which requires resignations to be provided in writing and to take effect immediately upon submission of their letter of resignation. That way there is no confusion as to the person’s intent and it removes the concern of creating a “lame duck” period or any sense of impropriety caused by announcing a resignation to take place some time in the future. If there is no policy in place and someone tries to withdraw an oral resignation, the remaining members of the public body should ask the person to clarify their intent to continue as the best way to resolve the conflict. Q. What happens if the person no longer has “domicile” in the town or jurisdiction? A. The term “domicile” is defined in RSA 21:6 and :6-a. 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. All elected officials are required to have their domicile in town under RSA 669:6. If an elected official no longer has their domicile in town, then under RSA 652:12 a vacancy is deemed to have been created. Determining whether an elected official still has their domiwww.nhmunicipal.org
