Opinion No.
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The Honorable David R. Matthews State Representative P.O. Box 38 Lowell, AR 72745

Dear Representative Matthews:

This is in response to your request for an opinion concerning what you identify as a unique situation in Bethel Heights, an incorporated town in your district. Specifically, you note that no candidates filed for office for the city council. There were no candidates for alderman at all. A new mayor was elected, however. Your question is whether, in the event the present aldermen refuse to continue to serve after the beginning of the new year, the Governor fills the vacancies, or whether the mayor can fill the vacancies.

The legal issues underlying your question were discussed squarely in Opinion No. 90-028 previously issued by this office. In that opinion, there were arguably only two acting council members in the incorporated town of Menifee. It was concluded therein that two members was an insufficient number to fill vacancies under the statutes, and that under that circumstance the Governor should fill the vacancies.

We should not that the present aldermen can retain their positions until their successors are elected and qualified. See Arkansas Constitution, Art. 19, 5. Your question appears to presume, however, that they will not do so. Thus, if all of the offices of alderman become vacant after the first of the year, the Governor should fill the vacancies. If, however, some aldermen choose to remain in office, there may be a sufficient number of them to fill the vacancies. Please review Opinion No. 90-028, a copy of which is enclosed, so that it may be applied to the facts as they develop in Bethel Heights. Should you have further questions, please do not hesitate to contact us.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.