Legal Opinion: Husband to Remain

Sonoran Alliance received the following email today regarding the status of Maricopa County Chairman, Tom Husband.

I am in receipt of the legal opinion issued by our Legislative Council which addresses the issue of whether an elected county official’s term ends when they are no longer an elected precinct committeeman.  The conclusion they reach is that a party county office does not become vacant if an officer is not reelected as a precinct committeeman at the primary election and their term runs to the statutory organizational meeting in January.  The full opinion may be viewed at SeeingRedAZ but we’ve also reprinted the opinion below:

LEGISLATIVE COUNCIL MEMO –  September 24, 2008

TO: Senator Thayer Verschoor

FROM: Kenneth C. Behringer, General Counsel

RE: County Party Officer Vacancy (R-48-129)

The current Maricopa County Republican Party chairman was not reelected as a precinct committeeman at the primary election held this month.

Does the office of chairman become immediately vacant or may the current chairman serve until a replacement is selected through the normal process?

The fact that the current chairman was not reelected does not mean that the office of chairman is immediately vacant.

The statutes are not explicit on what happens when a party county officer is not reelected as a precinct committeeman, but consideration of the specific county committee statutes and the general vacancy provisions indicate that the officer continues in the position until the county committee meeting at which the county officers are selected.

The county committee is comprised of all the precinct committeemen of a party in a county. Arizona Revised Statutes (A.R.S.) section 16-821. The precinct committeemen are selected at the primary election. Id.The county committee may meet for the purpose of organizing no earlier than ten days after the last organizing meeting of the legislative districts in the counties. A.R.S. section 16-824. The district meetings must be no earlier than the second Saturday after the general election. A.R.S. section 16-823. Therefore, the statutes provide that precinct committeemen are elected in September, but county officers are not selected until the following December or January.

It appears that the term of the county officers goes from one organizational meeting to the following organizational meeting two years later. Officers must be selected at the organizational meeting, and there is no provision for selecting officers at a different meeting. Also, nothing in statute requires that a county officer’s term endsbefore the organizational meeting, whether if because an officer is not reelected as a precinct committeeman or for any other reason. Therefore, a party county officer doesnot lose the officer’s position before the county meeting, if the officer is not reelected as a precinct committeeman.

To conclude otherwise would mean that whenever a sitting county officer decided not to seek reelection as a precinct committeeman. a vacancy would be created in the office. This conclusion is contrary to the legislative policy imbued in the statutes. Under A.R.S. section 38-295, every officer must continue to discharge the duties of the office until a successor has qualified. While this does not extend the term for the officer, the provision is designed to prevent vacancies in any office. State v. Macias, 162 Ariz. 316 (App. 1989). The section evidences the legislature’s intent that public offices not be left open. An interpretation of the county officer statutes that would frequently create an automatic vacancy would go against this policy.

Had the legislature intended the county officer positions to become vacant if an officer were not reelected, it would have stated this removal requirement. The statutes clearly provide for vacancy of precinct committeeman positions on change in party or precinct in A.R.S. section 16-822, subsection D. However, as noted above, there is no vacancy requirement for a county officer if the officer is not reelected as a precinct committeeman.

This issue arose in part because there is an opinion letter circulating concerning a situation in Pima County regarding the appointment of a person to the state committee. The letter opined that the person was ineligible to serve on the committee. However, the letter is inapplicable to the current situation, because the person in Pima County had quit membership in the party for a short time. Therefore, the Pima situation fell within the vacancy requirement in A.R.S. section 16-822, subsection D.

A party county office does not become vacant if an officer is not reelected as aprecinct committeeman at the primary election.

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