February 12, 1996
This letter is in response to your question regarding whether the position of city attorney is an elected official under the charter for your city and therefore, does he or she have to be a resident of the town. I agree with your interpretation that the residency requirement applies only to popularly elected officials and not to the office of city attorney.
Section 23 of the charter requires that a person be a resident of the town for six months prior to his election to be qualified "to hold any elected position connected with the government of said town." Section 9 of the charter provides that the board of commissioners is authorized "to elect" a city attorney and other officers. Although Section 9 uses the term "elect," the city attorney is actually "appointed" by the board.
"There are two legal methods of conferring office. Whenever the office is to be conferred by the people, or by any considerable body of the people, or by any considerable body of the people by their votes, it is spoken of as an election. Whenever it is to be conferred by an individual, as by the governor or mayor, or by a select number of individuals, as by a judicial court, or by the general assembly, or a municipal council or board it is usually spoken of as an appointment."
McQuillen, Municipal Corporations, Vol. 3 § 12.69; p. 358 (emphasis mine).
Therefore, it is my opinion that the office of city attorney is appointed, not an elected position as contemplated in Section 23 of the charter. If the city, through the General Assembly, desired to require all city officials, both appointed and elected, to be residents of the city it could have clearly provided so.
Please feel free to contact me if I can be of any further assistance regarding this or any other matter.
MTAS Legal Consultant