Opinion No. (1979)

REQUESTED BY: Janet Pieper, Director, State Department of Personnel. May a member of the State Personnel Board whose term of office has expired continue to hold office, if the member has not been removed and a successor has not been appointed?

Yes.

You have described a situation involving a member of the State Personnel Board whose five year term of office, established by section 81-1318, R.R.S. 1943, has expired, however, the board member has not been removed nor has a successor been appointed. Specifically, you have inquired whether this board member may continue to hold office and perform official tasks.

As a necessary attribute of office, an incumbent has the right to continue in his position until the election or appointment and qualification of his successor.

67 C.J.S., Officers, § 71, p. 380; State ex rel.County Attorney v. Willott, 103 Neb. 798, 174 N.W. 429 (1919). See, Report of the Attorney General, 1967-68, No. 152, p. 231. The purpose underlying this principle is to prevent a temporary vacancy in public office and to allow a reasonable time to accommodate circumstances which may occur in the transfer of a public office from one person to another.Stasch v. Weber, 188 Neb. 710, 199 N.W.2d 391 (1972).

Thus, in the situation you have described, the member of the State Personnel Board may hold over and continue to perform the duties of office, until a successor is appointed and qualified. Parenthetically, we note that the beginning of the successor's term of office would relate back to the date prescribed by section 81-1318.