AGO Opinion 98023
Legality of Prospective Appointments Submitted to the Legislature by the Governor
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
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
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
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.
Dale A. Comer
Assistant Attorney General