KAMALA D. HARRIS Attorney General
LAWRENCE M. DANIELS Deputy Attorney General
AGO 15-1202
No. 15-1202
California Attorney General Opinions
Office of the Attorney General State of California
December 30, 2016
THE
HONORABLE MEGAN STEDTFELD, COUNTY COUNSEL, COUNTY OF
CALAVERAS, has requested an opinion on the following
questions:
1. When
the office of county sheriff becomes vacant because of the
sheriff's death, must the next election to fill the
office coincide with the next state gubernatorial election,
or may the board of supervisors call a special election to
fill the office earlier?
2. When
the office of county sheriff becomes vacant because of the
sheriff's death, must the county board of supervisors
appoint a person to fill the office, or may the board, by not
appointing a successor sheriff, allow the person temporarily
performing the sheriff's duties under Government Code
section 24105 to continue to perform those duties until the
election?
3. When
a county board of supervisors appoints someone to fill a
vacancy in the office of county sheriff, must the appointee
meet all of the qualifications of the elected position,
including county residency? If so, does the board have the
authority to waive those requirements?
CONCLUSIONS
1. When
the office of county sheriff becomes vacant because of the
sheriff's death, the next election to fill the office of
sheriff must coincide with the next state gubernatorial
election. The board of supervisors may not call a special
election to fill the office before that time.
2. When
the office of county sheriff becomes vacant because of the
sheriff's death, the county board of supervisors must,
within a reasonable time, appoint a person to fill out the
remainder of the incumbent sheriff's term. The board may
not, through inaction, allow the person temporarily
performing the sheriffs duties under Government Code section
24105 to continue performing those duties for a protracted
period.
3. When
a county board of supervisors appoints someone to fill a
vacancy in the office of county sheriff, the appointee must
meet all the qualifications of the elected position,
including county residency. The board does not have the
authority to waive those requirements.
ANALYSIS
In
2014, the voters of the County of Calaveras, a general law
county, re-elected the county's sheriff to a four-year
term. In October 2015, the sheriff died, leaving a vacancy in
the office. Pursuant to the county's succession of
command, and in accord with state statute, the county's
operations bureau commander took over on a temporary basis as
the acting sheriff.1 The questions presented here arose from
the county's deliberations on how to fill the vacancy
permanently. Our analysis follows.
Question
1
We
first consider when the next election to fill the office of
sheriff should be held. For a time, the county considered
calling a special election to fill the sheriff's office,
to occur during the 2016 statewide general (and presidential)
election. Ultimately, however, the county decided that the
next sheriffs election must take place at the next
gubernatorial election in 2018.2 We agree with the county's
decision.
Sheriffs
are elected county officers. [3] Elected county officers are regularly
chosen by the people every four years, at the same time as
governors, except as otherwise provided in the Government
Code.4 Government Code section 25304 directs that
when a person is appointed to fill a vacancy in an elected
county office, he or she "shall hold office for the
unexpired term or until the first Monday after January 1st
succeeding the next general election."[5]
In the
leading case of People v. Col,[6] the California
Supreme Court determined that the term "next general
election," as used in the then-existing statute that
became Government Code section 25304,7 meant the next "general
election for filling the particular office to which the
person is appointed, or, in other words, to the general
election provided for as to all the county officers . . .
."8 That is, "the phrase 'next
general election' does not refer to the general election
immediately following the vacancy but to the first ensuing
general election at which the particular office is
normally filled for the full term."[9]
Applying
People v. Col, we concluded in 1974 that Government
Code section 25304 prohibited a county board of supervisors
from calling a special election to fill the office of a
county law-enforcement official—a constable who had
resigned during his term—rather than appointing someone
to fill the vacancy for the constable's unexpired
term.10 A sheriff, like a constable, is a county
law-enforcement official.11 Thus, we agree with the
county's determination that, under Government Code
section 25304, the next election for county sheriff must
coincide with the next gubernatorial election to be held in
2018.
Question
2
The
second question asks whether, when a vacancy occurs in the
office of county sheriff, the county board of supervisors
must appoint a successor to fill that vacancy pending a
proper election, or whether it may allow the person
temporarily performing the sheriff's duties under
Government Code section 24105 to continue to perform those
duties until the election. We conclude that the county board
of supervisors must fill such a vacancy by appointing a new
sheriff.12
When a
county sheriff dies in the middle of a term, the death
creates a vacancy by operation of law.[13] Government
Code section 25304 provides that the board "shall"
appoint someone to fill a vacancy in a county office. In the
Government Code, absent contrary indicia, the word
"shall" conveys a mandatory
command.14 As nothing in Government Code section
25304 indicates otherwise, the board is required to appoint a...
