2006-07-14 Letter to Constance Kiriu re Hawaii's Resign to Run Law and Charter Provisions Pertaining to Vacancies in County Elected Offices

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Honorable Constance Kiriu July 14, 2006 Page 4 k 3 Further, our research reveals this section essentially provides that a mayor is prohibited from a third consecutive term of mayoral office so long as he has been elected to two consecutive full terms of office. In other words, it matters not how many of the eight consecutive years he actually serves in office. So long as he was elected to both consecutive terms, he is "term limited" from running in the subsequent mayoral election. This result is consistent with our research that instructs us there is a fundamental difference between the "term" of office, and the "tenure" in office. Tenure in an office means "the right to perform its duties and to receive its emoluments." Casamasino v. City of Jersey City, 158 N.J. 333, 730 A.2d 287 (1999). It is also frequently used to mean "the right to occupation of the office or position for some extended or indefinite period of time, dependent upon efficient performance of duties, good behavior, age or other such requisites." Greenfield v. Passaic Valley Sewerage Com'rs, 126 N.J.L. 171, 17 A.2d 489 (1941). "Tenure" in an office is not synonymous, and is distinguished from "term of office," which means "the fixed legal period during which the incumbent may legally hold the office." Sueppel v. City Council of Iowa City, 257 Iowa 1071, 136 N.W.2d 523 (1965). Applying these definitions to our Charter provision, and there being no express provision in our Charter or laws to the contrary, it is our considered opinion the "two consecutive full terms of office" referenced in Section 5-1.2 of the Charter means 8 years, irrespective of how many years the mayor actually serves in the office (his tenure). The length of a "break" in between terms is not specified in our laws. In the present scenario involving our County, we conclude that the "term" of office at issue is 4 years (2004-2008). The fact is the Mayor (assuming he vacates his office) and his successor share a single term of office (a 4-year term from 2004- 2008). For purposes of our laws, they do not constitute two separate two-year terms. This result is consistent with the authority of Sueppel v. City Council of Iowa City, supra, and prevents manipulation of our laws to achieve a result inconsistent with the term limit legislation found in our Charter. # 5. If presently seated Council Members wish to run for the Office of the Mayor, must they also "resign to run"for the vacant Mayor's seat? No. Generally, the constitutional "resign to run" provision applies to i t i 3� i