Judges: WRITTEN BY: Don Stenberg, Attorney General Fredrick F. Neid, Assistant Attorney General
Filed Date: 3/18/1999
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Rex W. Holsapple, State Investment Officer This is in response to the questions you have asked relating to succession to the office of the state investment officer in the event of a vacancy occurring in the office. You indicate that one of the duties of the Nebraska Investment Council is to elect an "Acting Investment Officer should the need arise."
The initial question you ask is whether it is necessary that the acting state investment officer be a state employee. It is our conclusion that a person appointed by the Investment Council to serve as "acting" state investment officer in the event of a vacancy in the office would necessarily be an employee of the state. For purposes of responding to the question, it is presumed that the acting state investment officer would be a temporary appointment pending appointment of a candidate to fill the office on a continuing basis.
As you have noted, it is a duty of the Investment Council to appoint an acting state investment officer if a vacancy in the office occurs. The prevailing view followed in most jurisdictions for filling vacancies in public offices is that the vacancies may be filled only in the manner provided by law. This view is followed in this state and the Nebraska Supreme Court, in Stateex rel. Redmond v. Smith,
The state investment officer is necessarily an employee of the state in order to fulfill the qualifications and duties of the office. The nature and duties of the office are set forth in the provisions of the Nebraska State Funds Investment Act, Neb. Rev. Stat. §§
Importantly, the state investment officer is to be a full-time officer of the state and devote his or her entire time and attention to the duties of the office. Neb. Rev. Stat. §
We believe an acting state investment would be required to be a state employee for essentially the same reasons the state investment officer is required to be an employee of the state. A temporary appointee to the office would perform the duties and have the authority of the state investment officer and be required to devote his or her full-time attention to the duties of the office. Thus, an acting state investment officer would necessarily have the same statutory qualifications for the office. The legislative purpose expressed in the statutes is clear, that the person appointed to the office is required to devote his or her efforts to the duties of the office on a full-time basis. A fundamental principle of statutory construction is to attempt to ascertain legislative intent and to give effect to that intent. County of Lancaster v. Maser,
In construing a statute, the courts look to a statute's purpose and give the statute a reasonable construction which best achieves that purpose rather than a construction which would defeat it. In re Interest of Joshua M.,
The related question you ask is whether §
Sincerely,
DON STENBERG Attorney General
Fredrick F. Neid Assistant Attorney General
Approved:
Don Stenberg Attorney General