Colorado § 30-10-105 - When office becomes vacant.

§ 30-10-105. When office becomes vacant.

(1) Every county office shall become vacant, on the happening of any one of the following events, before the expiration of the term of office:

(a) The death of the incumbent;

(b) The resignation of the incumbent;

(c) The removal of the incumbent;

(d) The incumbent's ceasing to be an inhabitant of the county for which he was elected or appointed;

(e) The incumbent's refusal or neglect to take an oath or affirmation in accordance with section 24-12-101, to give or renew his or her official bond, or to deposit such bond within the time prescribed by law;

(f) The decision of a competent tribunal declaring void his election or appointment;

(g) The incumbent is declared incapacitated in the manner provided in subsection (4) of this section.

(h) Repealed.

(2) In the event a county officer is found guilty of any felony or infamous crime by a court or jury, the board of county commissioners shall immediately suspend such county officer from office without pay until his conviction is final and he has exhausted, or by failure to assert them has waived, all rights to new trial and all rights of appeal. At the time such officer's conviction is final and he has exhausted, or by failure to assert them has waived, all rights to appeal and new trial, the said board shall remove such officer from office and his successor shall be appointed as provided by statute, unless during such period of suspension a successor has been duly elected and qualified and said successor, whether so appointed or elected, shall be the duly constituted officer.

(3) Should the officer suspended from office by the board of county commissioners as provided in this section be found not guilty in a state or federal court either on appeal, original trial, or new trial, the board shall forthwith reinstate such officer and give him his back pay, unless during such period of suspension a successor to such suspended officer has been duly elected and qualified. In the event a successor to such suspended officer has been so elected and qualified, such suspended officer shall receive his back pay only up to the expiration date of his regular term of office and he shall not be reinstated or paid further unless he is such person duly elected and qualified.

(4) (a) Any county officer shall be declared incapacitated when there is a judicial determination that he is unable to routinely and fully carry out the responsibilities of his office by virtue of mental or physical illness or disability and he has been so unable for a continuous period of not less than six months immediately preceding the finding of incapacity. The quantum of proof required, the procedures to be followed, and the rights reserved to the subject of any determination of incapacity under this subsection (4) shall be those specified for the appointment of guardians in part 3 of article 14 of title 15, C.R.S., to the extent applicable.

(b) A proceeding to determine incapacity under this subsection (4) shall be commenced in the district court by a majority of the board of county commissioners. With respect to a county commissioner, proceedings shall be commenced when said commissioner fails to attend any regular meeting of the board of county commissioners for a period of six months. With respect to any county officer other than a county commissioner, proceedings shall be commenced when such officer fails to report to his office or other regular place of business for a period of six months.

(c) In any county having a population of less than one hundred thousand, the county shall be represented in the district court by the district attorney or by a qualified attorney acting for the district attorney who is appointed by the district court for that purpose. In any county having a population of one hundred thousand or more, the county shall be represented by the county attorney or a qualified attorney acting for the county attorney who is appointed by the district court for that purpose.

Source: G.L. § 561. G.S. § 661. R.S. 08: § 1359. C.L. § 8836. CSA: C. 45, § 183. CRS 53: § 35-1-5. L. 57: p. 308, § 1. C.R.S. 1963: § 35-1-5. L. 89: (1)(g) and (4) added, p. 1277, §§ 1, 2, effective March 9. L. 90: (1)(h) added, p. 1445, § 2, effective April 5; (1)(h) repealed, p. 1847, § 43, effective May 31. L. 2000: (4)(a) amended, p. 1835, § 15, effective January 1, 2001. L. 2018: (1)(e) amended, (HB 18-1138), ch. 88, p. 696, § 20, effective August 8.

Cross references: For the legislative declaration in HB 18-1138, see section 1 of chapter 88, Session Laws of Colorado 2018.

ANNOTATION

No interpretation of vacancy needed. So simple, direct, and integrated is the language of this section that there is no room for interpretation as to when a vacancy occurs. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

Vacancy applies not to the incumbent, but to the term, or to the office, or both, depending generally upon the context. People ex rel. Bentley v. Le Fevre, 21 Colo. 218, 40 P. 882 (1895).

The court said that the word "vacancy" as used in modern times relates not only to the office which is to be filled, but to the term for which the appointment is to be made. Monash v. Rhoades, 11 Colo. App. 404, 53 P. 236 (1898), aff'd, 27 Colo. 235, 60 P. 569 (1900); People ex rel. Calloway v. De Guelle, 47 Colo. 13, 105 P. 1110 (1909).

Conviction works disqualification and vacancy. Conviction under the statute of an infamous crime or of an offense involving the violation of the oath of office operates as a disqualification so as to create a vacancy forthwith in the office. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

Instant vacancy upon conviction. The happening of the event fixes the time and fulfillment of the vacancy, and the mingling of situations which ordinarily would give rise to vacancies ipso facto with others that do not necessarily create vacancies ipso facto, without difference of treatment in the statute, is significant, thus, among the listed events creating a vacancy in office are three which by their very nature result in termination of office holding, and the statutory declaration that the office becomes vacant upon the happening thereof seems almost surplusage; also reference is made to the provisions relating to the death of an incumbent, or his resignation, or his removal; the occurrence of any of these events establishes instanter a vacancy; and to hold that the death of an incumbent, or his resignation, or his removal effects an immediate vacancy in the office but that the same is not true as to an officer convicted of either of the described offenses would result in a strained, unnatural and illogical construction, in view of the language employed in the statute which makes no such distinction. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

But the mere doing of a prohibited act by an official, without his conviction therefor, does not create a vacancy. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

And in this state all infamous crimes are felonies, but not all felonies are infamous crimes. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

If a county official was convicted of income tax evasion, and if such amounts to conviction of an infamous crime or an offense involving a violation of his official oath, within the purview of this section, the office of sheriff of Jefferson county became vacant by operation of the law on the date of such conviction. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

Effect of out-of-state convictions. The fact that the general assembly has provided in certain statutes that convictions in other jurisdictions shall operate disadvantageously in the state to the convicted person, and did not so provide in this section, requires us to hold that, as to the latter, the general assembly purposely omitted words which would have given effect to foreign convictions, because to ascertain the intent of the general assembly enacting a particular statute, resort may be had to a comparison in language of the statute under study with analogous but unrelated legislation. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

A conviction in the federal court for this state is not conclusive on a question of disqualification to hold an office of honor, trust, or profit under the laws of Colorado. People v. Enlow, 135 Colo. 249, 310 P.2d 539 (1957).

When resignation without effect. The right of any public official to resign cannot be doubted; but when the resignation is predicated upon the premise, stated, or which his conduct may imply, that it is to avoid performing a specific duty in the interest of a party in whose behalf such official is legally bound to act, his resignation, however formally tendered and accepted, will be regarded as without effect. People ex rel. Rosenburg v. Keating, 112 Colo. 26, 144 P.2d 992 (1944).

Where the county clerk-elect died before qualification, a vacancy in the office occurred on the expiration of the term of the then incumbent, to be filled by appointment of the county commissioners. Gibbs v. People ex rel. Watts, 66 Colo. 414, 182 P. 894 (1919).

Where the sheriff incumbent was reelected but failed to qualify for the second term, and died before his first term expired, one appointed by the board of county commissioners to the vacancy, held only to the second Tuesday of the succeeding January, the day appointed by law for the commencement of the second term of his predecessor, even though by express terms, his appointment was "until the next general election"; that upon the second Tuesday of the succeeding January there was a vacancy, and one then appointed by the county commissioners to fill it was entitled to the office until the next general election. People ex rel. Calloway v. De Guelle, 47 Colo. 13, 105 P. 1110 (1909).