Op. Atty. Gen. 330c-3 ( 1993 )

l’ARKS: B(``)ARDS: i~lENNEPlN COUNTY: 'l``l``;RMS OF MEMBERS: _l``;rms or' members
Lippomteci by county board expire on lanuary i. 'l``liey may continue in ge w capacity until
successors are seiected. .\Iinn. Stat. _§``§ 3833.68. 383!3.69 l |990).
330-03
lanuary 4. 1993
Jet``frey R. Brauchle
Attorney for Suburban
Hennepin Regional Park District
Oppenheimer. Wolff & Donnelly
Plaza VlI
45 Scfitii seventh Street
Su";te 3400
Minneapolis. MN 55402
in your letter to the office or`` the Attorney General you set forth substantially the
following:
FAC'I``S
Minn. Stat. § 383B.68 states that the board of park district commissioners shall
consist of seven commissioners. five ot`` whom are elected and two of whom are
appointed by the board of commissioners of Hennepm County.
On .lanuary l7. 1989. one of the two appointed park district commissioners was
unanimously reappointed to serve on the Suburban Hennepin Regional _Parlc Board.
Although Minn. Stat. § 383B.69 states that the appointee was to serve until Janua.ry 1,
1989, his reappointment was not made until January 17, 1989. Pursuant to Minn. "Stat.
§ 3838.68. each appointed park district commissioner shall serve a "tour-year term.
You then ask substantially the following:
QU``ESTION ONE
Ma}r the appointed commissioner holdover after his term expiration date until a
successor is appointed and qualifies'?
OP[N!ON
ln our view. an incumbent may continue to serve as a gl_g facto member following
expiration of their term until a successor is appointed The statutory sections for replacing
lcl``l``rey R. Brauchle
l’age 2
commissioners oi`` the Suburban i-lennepin Regional Parlt Disirict are found in Minn. Stat.
§383B.68 l1990) and Minn. Stat. § 3838.69 (1990). 'l``he procedures t``or replacements for
appointed commissioners arc as t``ollows:
Subd. 2. 'l``wo park district commissioners shall be appointed by the board
of commissioners of Hennepin County. An appointee must be a resident of the
Hennepin county park reserve district in order to qualify and serve as a park
district commissioner. Each park district commissioner appointed pursuant to this
subdivision shall serve a four-year term. lf a vacancy occurs among the
commissioners appointed pursuant to this subdivision, the board of
commissioners of Hennepin county shall appoint a successor.
Tliere is no express statutory holdover provision with respect to appointed
commissioners Iii contrast. Minn. Stat. § 383B.68. subd. 3. which sets the procedures t``or
elected commissioners includes a holdover provision:
Each park district commissioner elected pursuant to this subdivision shall be a
resident of the district represented and shall serve t``or a term of four years and
until a successor is elected and qualifies . . . .
It appears that. as part of a comprehensive rewriting of subdivision 2. the legislature in 1985
deleted the phrase "and until a successor is appointed and qualified." _S_ee; Act of June 28.
1985. istspec. sess.. ch. 14, art 722. 1985 Minn. Lawsatzivo-n.l
The amendment altered the subdivision as follows:
Subd. 2. Three Two park district commissioners shall be appointed by the ark
and board of the city‘of Minnea olis fr_om amon its membership b_OL 915
commissioners of Hennepin county. n appointee must e a resident of th_e I-Iennepin
county park reserve district i_r_i order g)_ qualify an_q serve as a park district commissioner.
Each park district commissioner appointed pursuant to this subdivision shall serve for a
__fo“r"'ear term coinciding with his term on the park and recreation board of the city of
Minnea olis. and until a successor is appointed and uali_t``ies. f a Vacan°)’ OCC_‘H``S
among t e commissioners appointed pursuant to this sub ivision, the park and reel-canon
board of the dry Of Minneapolis commissioners of l-Iennepin county shall appoint a
successor.
lei"r``rcy iii. Braucnlc
Page 3
Tlins. a reading of subdivision 2 in contrast with subdivision 3 might suggest that there is
intended to be no holdover t``or the appointed commissioners However. it is our opinion that
the statute should not be so construed. lt appears that the deletion ot`` the holdover language
was intended to address the change from membership including city park commissioners whose
terms had been fixed to coincide with their terms on the city board to commissioners appointed
at large for a fixed term. rather than expressly to preclude any holding over.
Even without an express provision for formally extending the term. we believe that
existing members can continue to act in their positions until successors are in place. This
position is supported by case law in Minnesota in which courts have. in other contexts.
recognized that public interest be taken into consideration in deciding whether officers may
continue to perform the duties of office after the expiration of their terrns.
In Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.Zd 467 (1944), the court held that the
past president of the city council should continue in office until the council elected a new
president. The court listed several factors as to why the incumbent president should hold over:
respondent had taken the oath of office prior to the expiration of his term. there was no actual
break between his two terrns. and the council was evenly divided and unable to elect a
successor to him. Van Cleve, 216 Minn. 500, 515. 13 N.W.Zd at 472.
The court also stated that their decision best serves and protects the interest of the people
of Minneapolis. The court quoted from a previous case. wherein they stated that:
[i]t is undesireab|e and out of accord with judicial determination. from the earliest
times, that any interregnum should be allowed to exist in the transition of forms
of government or change of officers . . . . Questions involving government must
not be determine along technical lines. Practical and broad considerations should
control.
Woodbrid£e v. Citv of Duluth, 121 Minn. 99, lOZ, 140 N.W. l82, 183 (1913).
jeffrey R. Brauchle
Page 4
Similarly. although the court held that a holdover provision which allowed a clerk of
court to hold over for seven years and two months was unconstitutional. the court in
Smallwood v. WimM, 131 Minn. 401. 406. 155 N.W. 629. 631 (1915). stated that their
decision should not be used to infer that "one in office for a definite term without a hold over
provision may not. upon the occurrence of a vacancy. continue to perform the duties of his
office until action by the appointing power." Tlie court reasoned that "there is still a de jure
office and in the interest of the public service it may be that the incumbent should continue the
performance of his duties. " ld_.
Tlie apparent distinction which has been made is between officers holding over in §§
faLto or d_e jL status. This distinction was discussed in Op. Atty. Gen. 618a-2. February 6.
1959, wherein we concluded that Regents of the University of Minnesota. whose terms had
expired. served as d_e fagg officers until successors were selected. We there followed the
reasoning of the Connecticut court in State ex rel. McCarthv v. Watson, 132 Conn. 518, 45
A.2d 716 (1946):
If, by constitutional provision or valid statute. a definite term is established for an office
without provision t‘nat the incumbent shall continue in office after its expiration. he will.
in holding over, be a de facto and not a de jure officer. and a vacancy will result which
may be filled by the appointment, under proper authority, of a successor. If, however,
the term of office is not only for a definite time but until a successor is appointed and
qualified, an incumbent holding over is a de jure officer and unless, from the particular
language of the statute or the particular circumstances of the case, a different legislative
intent appears, there is no vacancy in the office within a provision authorizing an
appointment in such a contingency.
I_d_. 45 A.Zd at 720~21.
lt might be argued that, inasmuch as the status of de @t_o officer. by technical
definition. is not based upon direct statutory authority, it should not be said that such officers
are in any sense legally authorized to continue in office after the expiration of his or her term.
However, the foregoing authorities appear to go beyond mere tolerance of unauthorized tenure
lcl``frc_v R. Braticiile
Page 5
to suggest that such incumbents inay`` and in some circumstances should. continue to perform
the assigned duties until a successor is available.
Other jurisdictions as well have supported the notion that incumbents may hold over in
de w status absent provisions to the contrary. S_ee_ McQuillan. M_uer QO_!'LLHUO_H_, §
12. 105 (3d Ed.). Under this policy. an elected or appointed officer may remain in office after
the expiration of its term until a successor qualifies. whether or not this is provided by the
statute creating the office.
For example. a Maryland court has stated that:
The controlling, if not the sole. consideration has been that the law requires. in
the public interest, that the offices be filled at all times. without interruption. and
to this end the intention and understanding that incumbents shall hold until their
successor qualify has grown up and taken position as part of the law.
Reed v. President and Comm’r of Town of North East, 172 A.2d 536, 542 (Md. App. 1961).
Consistent with this generally held view that incumbent officers may hold over. and
absent a statutory or constitutional provision to the contrary, it is our opinion that
commissioners appointed pursuant to Minn. Stat. §383}3.68. subd. 2. should be allowed to
continue to perform the duties of office until a successor is appointed and qualifies.
You then ask substantially the following:
QUESTION TWO
Does the appointed commissioner``s four-year term expire on January l. 1993 or
January 17, 1993?
OPlNlON
ln our opinion, the appointed commissioner``s four-year term expires on January l, 1993.
The specific provision of Minn. Stat. § 383B.68. subd. 2. standing alone would suggest that
the appointee should serve a four-year term measured from the time of appointment.
However, Minn. Stat. §3831%.69 which establishes the initial transition to the current Board
leffrey R. Braucnle
Page o
structure indicates an intent to establish and maintain a staggered rotation of appointed terrns.
expiring on January 1 of each odd-numbered year. This rotation would ultimately be
destroyed, however. if each member appointed would serve for four years from his or her
actual appointment date.2 Consequently, it is our view that the terms technically expire on
January 1.
Very truly yours.
HUBERT H. HUMPHREY lll
Attorney General
KENNE'I'H E. RASCHKE .lR.
Assistant Attomey General
KER:gpp
2. §_ff._ Op. Atty. Gen. 618a-2, March 8, 1965, where we also reached the conclusion that
terms of University Regents expired in accordance with a fixed staggered schedule.