All About Resignations

Training for: Legal Notes

People resign from public office for all sorts of reasons, mostly honorable, but sometimes not. No matter what the reason, though, resignations often prompt legal questions. Here are the most common ones we can think of, together with our answers.

Must a resignation be in writing? No, an oral resignation is legally sufficient and may be accepted as is. But the official should be encouraged to tender it in writing – preferably signed – so there is documentation. If they refuse, the official or body that accepts the resignation should note for the record that it was given orally.

When is a resignation effective? Absent a municipal charter or ordinance provision to the contrary, a resignation is effective upon its acceptance by the official or body with the power to fill the vacancy. Acceptance may be either by formal vote to accept or by taking steps to fill the vacancy, such as making an appointment or calling an election if necessary.

Can a resignation be withdrawn? Yes, if it has not yet been accepted, but not afterward (see “Resignation Withdrawn,” Maine Townsman, Legal Notes, February 1995).

Can a resignation be made effective at a future date? Yes, if the resignation specifies a future effective date. But if accepted, the resignation cannot be withdrawn between acceptance and that future date.

Must a resignation be accepted? Technically, no, but an official cannot be compelled to continue serving, so there is probably no point in not accepting it. (If a resignation is tendered in a fit of petulance, there is perhaps all the more reason to accept it and to do so promptly.)

Is a resignation a public record? It is if it’s in writing. However, portions may contain confidential information, such as personal medical history or accusations about an identifiable employee. If so, these should be redacted before the resignation is released to the public (see “Is a Resignation a Public Record?,” Maine Townsman, Legal Notes, November 2010).

Can a resignation occur automatically? In effect, yes. An officeholder who qualifies (takes the oath) for a second office that is legally incompatible with the first is deemed to have automatically resigned the first (see “Incompatible Offices,” Maine Townsman, Legal Notes, August 1987).

How is a vacancy created by a resignation filled? Unanticipated vacancies in an office other than selectman or school committee must be filled by appointment by the selectmen for the remainder of the term even if the official is customarily elected. An unanticipated vacancy in the office of selectman may be filled only by special election. The rules for school committees and other types of school boards vary depending on the type of school unit (see “How Vacancies Are Filled,” Maine Townsman, Legal Notes, July 2007).

For more on resignations, see Chapter 2 of MMA’s Municipal Officers Manual, available free to members at www.memun.org. (By R.P.F.)

People resign from public office for all sorts of reasons, mostly honorable, but sometimes not. No matter what the reason, though, resignations often prompt legal questions. Here are the most common ones we can think of, together with our answers.

Must a resignation be in writing? No, an oral resignation is legally sufficient and may be accepted as is. But the official should be encouraged to tender it in writing – preferably signed – so there is documentation. If they refuse, the official or body that accepts the resignation should note for the record that it was given orally.

When is a resignation effective? Absent a municipal charter or ordinance provision to the contrary, a resignation is effective upon its acceptance by the official or body with the power to fill the vacancy. Acceptance may be either by formal vote to accept or by taking steps to fill the vacancy, such as making an appointment or calling an election if necessary.

Can a resignation be withdrawn? Yes, if it has not yet been accepted, but not afterward (see “Resignation Withdrawn,” Maine Townsman, Legal Notes, February 1995).

Can a resignation be made effective at a future date? Yes, if the resignation specifies a future effective date. But if accepted, the resignation cannot be withdrawn between acceptance and that future date.

Must a resignation be accepted? Technically, no, but an official cannot be compelled to continue serving, so there is probably no point in not accepting it. (If a resignation is tendered in a fit of petulance, there is perhaps all the more reason to accept it and to do so promptly.)

Is a resignation a public record? It is if it’s in writing. However, portions may contain confidential information, such as personal medical history or accusations about an identifiable employee. If so, these should be redacted before the resignation is released to the public (see “Is a Resignation a Public Record?,” Maine Townsman, Legal Notes, November 2010).

Can a resignation occur automatically? In effect, yes. An officeholder who qualifies (takes the oath) for a second office that is legally incompatible with the first is deemed to have automatically resigned the first (see “Incompatible Offices,” Maine Townsman, Legal Notes, August 1987).

How is a vacancy created by a resignation filled? Unanticipated vacancies in an office other than selectman or school committee must be filled by appointment by the selectmen for the remainder of the term even if the official is customarily elected. An unanticipated vacancy in the office of selectman may be filled only by special election. The rules for school committees and other types of school boards vary depending on the type of school unit (see “How Vacancies Are Filled,” Maine Townsman, Legal Notes, July 2007).

For more on resignations, see Chapter 2 of MMA’s Municipal Officers Manual, available free to members at www.memun.org. (By R.P.F.)