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Opinion 97040

DATE: August 6, 1997

SUBJECT: Qualifications for Appointment and Continued Membership on a Board When a Member's Qualifications Change During Office

REQUESTED BY: Marilyn Hasselbalch, Executive Director

Nebraska Real Estate Appraiser Board

WRITTEN BY: Don Stenberg, Attorney General

Timothy J. Texel, Assistant Attorney General




You have requested our opinion on several issues primarily

dealing with situations where a board member's status changes

subsequent to appointment. Specifically, you ask the following

questions: 1) Are board membership appointments predicated on the

understanding the appointee will retain the designation which

provided eligibility for appointment? 2) Is an appointee obligated

to resign if he or she no longer holds the license or designation

which established eligibility? 3) If a board member appointed to

represent a certain industry severs that relationship in midterm,

is the member ineligible to continue serving as a board member?




It appears the Board's first and third questions are closely

related and can be addressed together. They deal with situations

where a person met the qualifications for board membership when

appointed, but during his or her term of office the board member's

status changes (such as retirement, failure to renew a license, or

change of professions), so that he or she no longer meets the

initial membership qualification requirements. The question is

whether such a status change makes the member ineligible to

continue serving as a board member? Based on previous opinions

issued by this office, we believe that eligibility criteria are

continuing requirements. Thus, a member whose status changes so

that he or she no longer meets the appointment qualifications

thereby becomes ineligible to serve the remainder of his or her

term of office.




Once a member is appointed, the Real Estate Appraiser Act, §§

76-2201 to 76-2250, does not provide guidance concerning how to

address situations where a board member's status changes during

office. Our review of the legislative history for § 76-2222 also

failed to disclose any specific indication concerning what the

Legislature may have intended in such situations. Likewise, we

found no Nebraska case law on point.




This office has previously addressed continuing eligibility

for service on a state board when a member's status changes during

office. In Attorney General's Opinion 96020 we noted that although

there was no Nebraska case law on the topic, the general rule from

other jurisdictions indicated that eligibility requirements for

public office is of a continuing nature. They must exist not only

at the time of appointment, but also throughout occupancy of the

office. See Op. Att'y Gen. No. 96020 (March 11, 1996). We

therefore determined that a board member who ceased his active

participation in a business through retirement became ineligible

for continued service on the board. Id. We believe Attorney

General's Opinion 96020 is directly on point and controls the

situation presented in your opinion request.




You go on to ask whether an appointee is obligated to resign

from office if he or she no longer meets the criteria which

established eligibility? We believe a board member who no longer

meets membership eligibility requirements for appointment would be

obligated to resign. If the member refused to resign, action could

be instituted to remove the member. This issue was addressed in

Attorney General's Opinion 96020. In that opinion, we addressed

what legal procedures were available for removing board members who

are not qualified to continue in office. We determined that two

mechanisms exist to remove unqualified members.




The Governor has the ability to remove, for cause, any person

whom he appointed to the Board. The Real Estate Appraiser Act

specifically provides for such removal. The last sentence of § 76-

2222(2) states, "The Governor may remove a member for cause." Such

removal power is also provided for in Art. IV, § 10 of the Nebraska

Constitution. The removal could only take place after a public

hearing. In Attorney General's Opinion 96020, we determined that

a board member's ineligibility to serve on the Board constitutes

"cause."




Also, the Attorney General's Office could file an action to

remove an unqualified member of a State board based on the quo

warranto statutes, Neb. Rev. Stat. §§ 25-21,121 through 25-21,148

(1995). These statutes allow an action to be filed against any

person unlawfully holding any public office in the state.




Sincerely,




DON STENBERG

Attorney General








Timothy J. Texel

Assistant Attorney General