CITIES AND TOWNS, THIRD CLASS COUNCIL, VACANCIES, FILLING OF MAYOR, AUTHORITY TO CAST TIE‑BREAKING VOTE

CITIES AND TOWNS, THIRD CLASS COUNCIL, VACANCIES, FILLING OF MAYOR, AUTHORITY TO CAST TIE‑BREAKING VOTE

(1) The majority of councilmen voting (there being a quorum present) can fill vacancies in the city council of a third class city.

(2) The mayor of a third class city has no authority to cast a vote in the council to break a tie.

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                                                                   March 5, 1957

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                                               Cite as:  AGO 57-58 No. 25

Dear Sir:

            By your letter of February 20, 1957, previously acknowledged, you requested our opinion as to the filling of a vacancy in the city council of Roslyn, Washington, a third class city.  We paraphrase your two questions as follows:

            (1) Is it necessary that a vacancy in the city council of a third class city be filled by the concurring votes of at least four council members?

            (2) If the remaining six councilmen deadlock with two potential appointees each receiving three votes, can the mayor cast the deciding vote?

            We answer both questions in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            RCW 35.24.020 (1955 Supp.) provides in pertinent part as follows:

            "The government of a third class city shall be vested in a mayor, a city council of seven members, a city attorney, a clerk, a treasurer, all elective; . . .  The city council by ordinance shall prescribe the duties and fix the compensation of all officers:Provided, That the provisions of any such ordinance shall not be inconsistent with any statute."

            RCW 35.24.100 provides, with regard to filling vacancies, as follows:

            "Vacancies in the city council or in the office of mayor shall be filled bymajority vote of the council.  Vacancies in offices other than that of mayor or city councilman shall be filled by appointment of the mayor."  (Emphasis supplied.)

            RCW 35.24.200 provides in part:

            "At all meetings of the city council, a majority of the councilmen shall constitute a quorum for the transaction of business, but a less number may adjourn from time to time and may compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance."  (Emphasis supplied.)

            We believe that the emphasized words of RCW 35.24.100, properly interpreted, call for a majority of the members voting if a quorum is present.  Although we find no Washington cases in point, it is a general rule that in the absence of contrary statutory provision, a vote of the majority of those present (there being a quorum) is all that is requisite for the doing of any act which the governing body has power to do.  McQuillin on Municipal Corporations, 3rd Ed., § 13.29, page 481, and cases cited.

             [[Orig. Op. Page 3]]

            The number of votes necessary to fill vacancies will, therefore, depend on what, in a given case, constitutes a quorum.  RCW 35.24.200, above quoted in part, states that a "Majority of the councilmen" shall constitute a quorum.  This presents the question whether "Majority" means a majority of the entire council as constituted by law, i.e., a majority of seven members, or a majority of the actual council membership.  Unfortunately, the cases are not in agreement on this question.  It may be stated, as a general rule, however, that unless a statute defines a quorum as a majority of the "whole council" or the "entire board" or in similar terms, if there is a vacancy in the council or governing body, a majority of the remaining members will suffice for a quorum; 62 C.J.S., Municipal Corporations, § 399, page 758, and cases cited; McQuillin on Municipal Corporations, 3rd Ed., § 13.29, page 483, and cases cited.  We believe that this construction should be given RCW 35.24.200 for the further reason that the following section, RCW 35.24.210, sets forth the cases in which the votes of four councilmen are required.  This section provides in pertinent part that

            "No ordinance and no resolution or order shall have any validity or effect unless passed by the votes of at least four councilmen."

            It would appear that these are the only situations in which four votes will always be required.  An ordinance, resolution, or order is not necessary for filling vacancies on the council.  We conclude, therefore, that vacancies may be filled by a majority vote of those voting if a quorum is in fact present.  In the situation before us, a quorum is four.  If four members voted, three concurring votes would be sufficient to fill the vacancy.

            Your second question is whether if the votes of the councilmen split 3 to 3, the mayor can cast a tie‑breaking vote.  We have answered in the negative for the reason that RCW 35.24.100 provides that vacancies will be filled by majority vote of the council.  The mayor is not a council member, but only a presiding officer.  The legislature has not vested him with authority to vote at council meetings.

            ". . . the officers of a municipality have only such powers and duties as are conferred upon them expressly or by necessary implication by the applicable statutes. . . ."  Othello v. Harder, 46 Wn. (2d) 747, 752.

             [[Orig. Op. Page 4]]

            RCW 35.24.200 provides, with regard to the conduct of meetings, that

            "All meetings of the council shall be presided over by the mayor, or, in his absence, by the mayor pro tempore.  If the clerk is absent from a council meeting the mayor or mayor pro tempore shall appoint one of the members of the council as clerk pro tempore.  The appointment of a councilman as mayor pro tempore or clerk pro tempore shall not in any way abridge his right to vote upon all questions coming before the council."  (Emphasis Supplied)

            The emphasized portion of this section would indicate that it is only when a council member is serving as mayor pro tem that the presiding officer can exercise a vote.  No authority is given the mayor to cast a tie‑breaking vote.

            We hope this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID S. BLACK
Assistant Attorney General