The city of Statesboro cannot add a special election to the Nov. 7 ballot to fill the unexpired term of District 1 Councilman Phil Boyum while he remains in office, despite his stated intent to resign effective Dec. 31, city staff members have determined.
City Clerk Leah Harden, who is in charge of qualifying for elections – such as the process underway this week to place candidates for regular terms in council Districts 2, 3 and 5 on the Nov. 7 ballots – and City Attorney Cain Smith researched the matter further after Boyum announced his intent during the Aug. 15 meeting. At that meeting Boyum made a motion, seconded by District 4 Councilmember John Riggs and passed 5-0, to call the special District 1 election for Nov. 7.
Getting the District 1 seat onto a ballot on the same day as the three seats now scheduled for regular election would save the city money and staff members time, Boyum said. After 11 years on the council he is halfway through his current four-year term, so the special election would be for the remaining two years.
But the Statesboro City Charter states, “In the event a vacancy occurs on the city council for any reason other than the expiration of the term of office, a special election to fill the unexpired term shall be held in accordance with … (state laws known as) the ‘Georgia Election Code.’”
Harden had said last week the city staff was looking into whether a special election could be held while the vacancy has yet to occur.
“A special election will not be called until such time as there is a vacancy,” she stated Tuesday in reply to a follow-up email from the Statesboro Herald.
Harden referred further questions to Smith, who explained that the question was answered not by the state Election Code itself, but by court rulings in past cases.
“Election code states how a special election may be called in the event of a vacancy, but the question of what constitutes an office vacancy is answered by relevant case law, not Georgia code,” Smith stated.
“There's a long progeny of cases…,” he said, which affirm that an “office is not vacant so long as it is filled by an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it."
One case he cited was Garcia v. Miller, 261 Ga. 531, in which the Georgia Supreme Court in 1991 upheld that a state-court judge could remain in office after his constitutional term ended until his successor was qualified.
“Ergo, in this case there is no vacancy until such time as the office is not filled,” Smith said.
Asked whether council members will need to rescind their Aug. 15 vote, Smith said they won’t have to as far as he is concerned because the special election call was “a legally impossible action and automatically moot.”
Back to Boyum
So the question to Boyum, then, is whether he still intends to remain in office until Dec. 31 and resign then, which would send the special election into 2024 – a county, state and federal election year with no regular city elections – or leave office sooner.
“I’m looking at a way to ensure that the citizens have the shortest amount of time without representation, because with all the taxes and development and changes coming to Bulloch County, we need to have a voice for the people in (Statesboro) District 1,” Boyum said Wednesday.
He has not made any decision, but one possibility he is considering could allow the special election to still be held along with the Nov. 7 regular election. The Election Code sets 29 days as the minimum span between calling a special election and holding one.
“There’s still an opportunity for me to resign, possibly at the beginning of October and call the election for November, and the interesting thing is, because it’s a special election, whoever gets elected will take that seat immediately, not in December or January,” Boyum said.
Smith agreed that if Boyum resigned by the first meeting in October, which will be Oct. 3, the city could still call a special election for Nov. 7.