RESIGNATION OF STATE SENATOR — FILLING OF VACANCY PROCEDURE The latest date which a Senator can resign when the legislature is not in session and still allow time for an election of a successor before the next legislature convenes is a date which would allow the Governor time to issue a proclamation fifteen days before a special primary election and also sufficient time after such election to conduct a special election. The Governor can issue a proclamation for a special election or special primary election only when the vacancy occurs. Elections to fill vacancies of members of the legislature do not have to be held on a certain day and there is no definite period of time that must elapse between the date of a special primary election and a special election. The Attorney General has had under consideration your recent letter in which you inquire as follows: 1. What is the latest date I can resign as State Senator and there still be time for an election of successor before the legislature convenes on January 5, 1971? 2. Can I hand in my resignation on November 20, 1970, to become effective on December 1, 1970, and have the governor issue a proclamation on November 20, calling for a special election? 3. Must there be three weeks time between the special primary election and the special election? 4. Do such elections have to be held on a Tuesday? Title 26 Ohio St. 541 [26-541] (1961) — 26 Ohio St. 543 [26-543] (1961), are pertinent to your first inquiry and provide as follows; "Section 541. Whenever a vacancy shall occur by death, resignation, removal or otherwise in the office of member of the Legislature, such vacancy shall be filled at a special election to be called by the Governor. If such vacancy occurs during a session of the Legislature, or within ten days previous to the convening of any session, such special election shall be held upon not less than ten days public notice of such election. Such special election may be fixed upon the day of any general or regular election authorized by law. "Section 542. Whenever a vacancy occurs, as contemplated in section one, the Governor shall issue his proclamation designating a day upon which an election shall be held throughout the county or district in which such vacancy exists, to fill such vacancy. Such proclamation shall recite the fact of such vacancy, the county, counties or districts affected thereby, the date of the primary election to nominate candidates for such vacancy, and the date of the election to fill such vacancy. "Section 543. If such special election is called upon ten days notice, nominations may be made by political parties, either in mass or delegate conventions, or by petition of not less than one hundred qualified electors of the legislative district in which such vacancy is to be filled. . . ." These statutes authorize two procedures, either of which the Governor may utilize, to fill a vacancy in the Legislature. These procedures are as follows: 1. A special election upon not less than ten days notice; the political parties may nominate their respective candidates prior to such election either (a) in mass, (b) by delegate convention, or (c) by petition of not less than 100 qualified electors in the district. 2. A special election preceded by a special primary election, in which event, the primary election laws (26 Ohio St. 111 [26-111] (1961) — 26 Ohio St. 172 [26-172] (1961)) apply. Procedure number one, supra, can only be utilized when a vacancy occurs during a session of the legislature or within ten days previous to the convening of any session. Thus, procedure number two, supra, must be utilized in your particular situation since you wish to allow sufficient time for a successor to be elected to your office subsequent to your resignation and this necessarily would be more than ten days prior to the convening of the 1971 legislative session. Whenever procedure number two, supra, is utilized 26 Ohio St. 113 [26-113] (1970), is applicable and provides in pertinent part as follows: "If special primary elections are held to fill vacancies in the Legislature, they shall be held on a day fixed by the Governor by proclamation which proclamation shall be issued fifteen (15) days before the day of such special primary election." Therefore, your resignation must occur on a date which would allow the Governor time to issue a proclamation fifteen days before a special primary election and also would allow sufficient time after such election to conduct a special election, both elections occurring before January 5, 1971. It is, therefore, the opinion of the Attorney General that the latest date which you can resign as State Senator and still allow time for an election of a successor before the legislature convenes on January 5, 1971, would be a date which would allow the Governor time to issue a proclamation fifteen days before a special primary election and also sufficient time after such election to conduct a special election. In answer to your second question, there is no vacancy until a legislator actually resigns from his position. The Governor can issue a proclamation for a special election or special primary election only when such vacancy occurs. It is, therefore, the opinion of the Attorney General that the Governor could not issue a proclamation on November 20, 1970, calling for a special election when a member of the legislature hands in his resignation on November 20, 1970, to become effective on December 1, 1970. In answer to your third and fourth questions, there is no requirement that elections to fill vacancies in the legislature must be held on a certain day or that there must be a definite period of time between the date of the special primary election and the special election. When the special primary election procedure is used, it is within the prerogative of the Governor as to how much time will elapse between the special primary election and the special election. Therefore, it is the opinion of the Attorney General that elections to fill vacancies of members of the legislature do not have to be held on a certain day and that there is no definite period of time that must elapse between the date of a special primary election and the special election. (GARY F. GLASGOW)