Resignations and vacancies in the California legislature

Government Code Title 1, Division 4, Chapter 4 deals with resignations and vacancies. Article 1 concerns resignations and contains Section 1750 to 1752. Section 1750 requires all resignations to be in writing. A resignation by the Governor or Lt. Governor is made to the Legislature if it is session. If the Legislature is not in session, then the resignation is made to the Secretary of State.

Resignations by all officers commissioned by the Governor are made to the Governor. For Members of the Senate or Assembly, resignations are made to the presiding officers of their respective houses, who are required to immediately transmit the resignation to the Governor. Resignations by all officers of a county or special district not commissioned by the Governor are made to the clerk of the board of supervisors of their respective counties.

Resignations by officers of a superior court are made to the presiding judge. Resignations by officers of a municipal corporation are made to the clerk of the legislative body of their corporation. And, resignations by all other appointed officers are made to the body or officer that appointed them.

From time-to-time, a state legislator chooses to resign his or her seat in the California Legislature. This happened in several instances during the 2021 calendar year. How do resignations work in the Legislature?

Section 1750(c) provides that, for Members of the State Senate or State Assembly, resignations are made in writing to the presiding officers of their respective houses. As a result, an Assembly Member submitting his or her resignation writes to the Speaker of the Assembly, while a State Senator submitting his or her resignation writes to the President pro Tempore of the Senate.

Section 1750(c) thereafter requires the presiding officer to immediately transmit the resignation to the Governor. As a resignation results in the creation of a vacancy in a state legislative office, the Governor is then required to call a special election to fill the vacant Assembly or Senate seat.

Section 1750.5 requires the Assembly Speaker or Senate Rules Committee Chair to immediately inform the Governor in writing whenever a resignation has been made to them from any board or commission having members appointed by the Speaker or Senate Rules Committee. Section 1751 specifies that, in all cases not otherwise provided for, a resignation is made by filing the resignation in the office of the Secretary of State.

Under Section 1752, for a general law city, when a vacancy occurs in the elected mayor position, then the city council may fill that vacancy by appointing a member of the council to the office of mayor.

Government Code Section 1770 provides that an office becomes vacant when any of the following occur before the expiration of the term:

• The death of the incumbent
• An adjudication proceeding declaring that the incumbent is physically or mentally incapacitated due to disease, illness, or accident, and that there is reasonable cause to believe that the incumbent will not be able to perform the duties of his or her office for the remainder of his or her term
• His or her resignation
• His or her removal from office
• His or her ceasing to be an inhabitant of the state
• His or her absence from the state without the permission required by law beyond the period allowed by law
• His or her ceasing to discharge the duties of his or her office for the period of three consecutive months, except when prevented by sickness, or when absent from the state with the permission required by law
• His or her conviction of a felony or of any offense involving a violation of his or her official duties
• His or her refusal or neglect to file his or her required oath or bond within the time prescribed
• The decision of a competent tribunal declaring void his or her election or appointment
• The making of an order vacating his or her office or declaring the office vacant when the officer fails to furnish an additional or supplemental bond
• His or her commitment to a hospital or sanitarium by a court of competent jurisdiction as a drug addict, dipsomaniac, inebriate, or stimulant addict
• The incumbent is listed in the Excluded Parties List System [the list maintained and disseminated by the federal General Services Administration containing names of, and other information about, persons who are debarred, suspended, disqualified, or otherwise excluded from participating in a covered transaction, pursuant to federal law]

Section 1770.1 provides that the disqualification from holding office upon conviction or the forfeiture of office upon conviction is neither stayed by the filing of an appeal from the conviction, nor set aside by the successful outcome of an appeal from the conviction.

Section 1770.2 specifies that, upon the entry of a plea of guilty, the entry of a plea of nolo contendere, or the rendering of a verdict of a guilty either by a jury or by the court sitting without a jury of a public offense, the person found guilty is prohibited from assuming the office or is suspended immediately from the office the person holds.

Pursuant to Section 1773, when a vacancy occurs in the office of Representative to Congress, or in either house of the Legislature, the Governor must, within 14 calendar days after the occurrence of the vacancy, issue a writ of election to fill the vacancy. Under Section 1773.5, in addition to any other applicable provision of law, a vacancy occurs in the office of Representative in Congress in the event of his or her disappearance.

Section 1774 requires that, when an office either becomes vacant or the term of the incumbent expires, the Governor may appoint a person to the office or reappoint the incumbent after the expiration of the term. Until Senate confirmation of the person, that appointee serves at the pleasure of the Governor.

Under Section 1774.5, no person holding an office which is deemed to be vacant may continue to discharge the duties of the office. In addition, the Governor cannot reappoint the person to the same office for a period of 365 days after the time the office has been deemed to be vacant.

Pursuant to Section 1775, whenever there is a vacancy in the office of the Superintendent of Public Instruction, the Lieutenant Governor, Secretary of State, Controller, Treasurer, or Attorney General, or on the State Board of Equalization, the Governor is required to nominate a person to fill the vacancy. That person takes office upon confirmation by a majority of the membership of the Senate and a majority of the membership of the Assembly and who then holds office for the balance of the unexpired term.

In the event the nominee is neither confirmed nor refused confirmation by both the Senate and the Assembly within 90 days of the submission of the nomination, the nominee takes office as if he or she had been confirmed by a majority of the Senate and Assembly. In addition, after a vacancy has occurred in a constitutional office, and prior to the time the vacancy is filled, the chief deputy to the constitutional officer discharges the duties of that office.

Finally, Section 1782 specifies that, whenever a vacancy occurs on a state board or commission, or a seat on a board or commission is abolished by statute, the board or commission must notify the appropriate appointing authority of this occurrence and the appropriate appointing authority then notifies the person occupying the vacated or abolished seat that the person may no longer serve on the board or commission.