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AGO Opinion 98023

Legality of Prospective Appointments Submitted to the Legislature by the Governor
Opinion 98023

DATE: April 7, 1998

SUBJECT: Legality of Prospective Appointments Submitted to the Legislature by the Governor




REQUESTED BY: Senator Jim Jones, Nebraska State Legislature




WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General






Your opinion request has to do with the Governor's ability to

make "prospective appointments" to public office which are

appointments made in anticipation of a vacancy which will occur in

the future. You ask:




I am requesting an opinion on gubernatorial appointments.

The Legislature is confirming re-appointments before a

term expires and is filing vacancies with new individuals

months in advance of any vacancy, allowing two

individuals to be appointed to the same position. Is it

legally permissible for the Governor to fill a vacancy

before one exists?




For the reasons discussed below, we believe that the Governor can

make prospective appointments, so long as those appointments are

made for offices where the term of office for the incumbent ends

before the conclusion of the Governor's term of office.




Article IV, § 10 of the Nebraska Constitution provides, in

pertinent part:




The Governor shall appoint with the approval of a

majority of the Legislature, all persons whose offices

are established by the Constitution, or which may be

created by law, and whose appointment or election is not

otherwise by law or herein provided for; and no such

person shall be appointed or elected by the Legislature.




We assume that the gubernatorial appointments referenced in your

opinion request are appointments made under authority of this

constitutional provision and the numerous Nebraska statutes

consistent with it. We also assume, for purposes of this opinion,

that the appointments at issue involve appointments necessary as a

result of the end of a particular officer's term, and not

appointments made necessary by a vacancy in office which has arisen

as a result of resignation, death, or otherwise.




Our research has disclosed no Nebraska cases which deal

specifically with the legality of prospective appointments. Nor

have we found previous opinions from this office which specifically

deal with that issue. However, the general rule in other

jurisdictions is set out at 67 C.J.S. Officers § 39:




The general rule is that a prospective appointment

to fill a vacancy sure to occur in a public office, made

by an officer who . . . is empowered to fill the

vacancy when it arises, is a valid appointment, and vests

title to the office in the appointee. . . . An

appointment to office in anticipation of a vacancy

therein is proper only where the officer or body making

the appointment is still in office when the vacancy

occurs, an officer clothed with the power of appointment

to a public office has no right to forestall the rights

and prerogatives of his successor by making a prospective

appointment to fill an office, the term of which is not

to begin until his own term and power to appoint have

expired.




The rule is similarly described in 63C Am. Jur. 2d Public Officers

and Employees § 88:




As a general rule, an appointment cannot be made

where no vacancy of office exists. However, this rule

does not prevent appointments made in anticipation of a

vacancy that ultimately occurs. In this regard,

appointments which fill a prospective vacancy in office

before the actual vacancy occurs are generally valid; a

prospective appointment to fill an anticipated vacancy or

one sure to occur in a public office, made by a person or

body which, as then constituted, is empowered to fill the

vacancy when it arises, is, in the absence of express law

forbidding it, a valid appointment, which vests title to

the office in the appointee. Or, as otherwise stated,

the fact that the incumbent's term has not expired at the

time an appointment is made to fill a vacancy in the

office does not render the appointment invalid if it is

to take effect at the expiration of the incumbent's term

and the vacancy will occur during the appointing

officer's term of office. . . .




However, an appointment to office in anticipation of

a vacancy is good only when the officer making the

appointment is still in office when the vacancy occurs.

If the term of the appointing body or officer will expire

prior to, or the same time as, the vacancy will occur,

then no power of prospective appointment exists; in this

regard, a public officer or public body having a power of

appointment cannot forestall the rights and prerogatives

of a successor by making a prospective appointment to

fill an office where the appointee's term is not to begin

until the appointing power's own term has expired.




The general rule is amply supported by cases from other

jurisdictions. Mullinax v. Garrison, 296 S.C. 370, 373 S.E.2d 471

(1988); Georgia v. Suruda, 154 N.J. Super. 439, 381 A.2d 821 (N.J.

Super. Ct. Law Div. 1977); Tappy v. State of Florida, 82 S.2d 161

(Fla. 1955); State ex rel. La Nasa v. Hickey, 222 La. 17, 62 S.2d

86 (1952); State ex rel. Childs v. O'Leary, 64 Minn. 207, 66 N.W.

264 (1896). The general rule also appears to have been applied in

numerous cases where an appointment was necessitated by the end of

an incumbent's term of office rather than by a vacancy in office by

death, resignation, or otherwise. State ex rel. Norman v.

Viebranz, 19 Ohio St. 3d 146, 483 N.E.2d 1176 (1985); State ex rel.

Oklahoma Tax Commission v. Mourer, 596 P.2d 882 (Okla. 1979); Board

of Education of McCreary County v. Nevels, 551 S.W.2d 15 (Ky. Ct.

App. 1977); Faciane v. Bosco, 236 So.2d 601 (La. Ct. App. 1970).




We believe it likely that our courts would adopt the general

rule set out in the authorities discussed above. This is

particularly true since the prospective appointment process has

apparently been used before in Nebraska. For example, in State ex

rel. Johnson v. Hagemeister, 161 Neb. 475, 478, 73 N.W.2d 625, 628

(1955), the Nebraska Supreme Court indicated that then-Governor

Robert Crosby had reappointed a member of the Board of Education of

the State Normal Schools to that board in October, 1954, for a term

of office commencing in January, 1955. In Hagemeister, the Court

did not discuss the propriety of that prospective appointment, but

it is apparent from the case that the process was used.




Consequently, we believe that the Governor can make

prospective appointments for offices where the incumbent's term of

office ends at some point in the future, so long as the incumbent's

term of office ends before the Governor's term of office. For

example, if the term of office for an incumbent member of a state

board ends in August, 1998, then Governor Nelson may make a

prospective appointment for that office now. On the other hand, if

the term of office for that same incumbent member of a state board

ends in February, 1999, after the end of Governor Nelson's term of

office, then that appointment may not be made prospectively at this

time.




Since appointments by the Governor under art. IV, § 10 of the

Nebraska Constitution must also be approved by the Legislature, we

assume that your opinion request pertaining to the legality of

prospective appointments by the Governor also involves the issue of

how and when the Legislature is constitutionally required to deal

with such appointments. We believe that question is governed by

the Legislature's own rules.




We have previously indicated that, in our view, temporary

gubernatorial appointments to fill vacancies made under art. IV, §

12 of the Nebraska Constitution must be acted upon by the

Legislature at its next session, or the Legislature loses its right

to disapprove those appointments. Op. Att'y Gen. No. 90010

(February 20, 1990); 1973-74 Rep. Att'y Gen. 75 (Opinion No. 56,

dated May 21, 1973). On the other hand, we have also indicated

that appointments made under art. IV, § 10 of the Nebraska

Constitution are not subject to any constitutional provisions which

require legislative action at the next session of the legislature.

Op. Att'y Gen. No. 90010 (February 20, 1990). Instead, the time

frame for approval of appointments under art. IV, § 10 is governed

by the Legislature's own rules, since art. III, § 10 of the

Nebraska Constitution allows the Legislature to determine the rules

of its own proceedings, and this power extends to the transaction

of any legislative business and to the performance of any duty

conferred upon the Legislature by the Constitution. State ex rel.

Johnson v. Hagemeister, supra; Op. Att'y Gen. No. 90010 (February

20, 1990). Therefore, because the appointments at issue are

appointments at the end of a term under art. IV, § 10, we believe

that the time frames for the legislative appointment approval

process, including when and how the appointments are considered,

are governed by the rules of the Legislature.




Sincerely yours,




DON STENBERG

Attorney General








Dale A. Comer

Assistant Attorney General