AGO 85-13.

• Court: North Dakota

North Dakota Attorney General Opinions 1985. AGO 85-13. OPINION 85-13Date Issued: April 23, 1985 (AGO 85-13 Requested by: Gail Hagerty Burleigh County State's Attorney- QUESTION PRESENTED - Whether the term of office of a water resource manager begins on January 1, and ends at the completion of the fifth year on December 31.- ATTORNEY GENERAL'S OPINION - It is my opinion that the term of office of a water resource manager begins on January 1, and ends at the completion of the fifth year on December 31. - ANALYSIS - In the case described, the board of county commissioners failed to appoint replacements for water managers whose terms were about to expire. As a result, two individuals became holdover appointees. The issue raised is when does the term of office of the new appointees commence and end. Recently, the North Dakota Supreme Court addressed a situation involving the question of when a term of office ends and the subsequent term begins. State, ex rel. Spaeth v. Olson, ex rel. Sinner 359 N.W.2d. 876 (N.D. 1985) . The Court stated, "thus, when the incumbent holds over beyond the expiration of his term (as when the successor fails to qualify prior to the expiration of the term) it does not affect the term of the office, but merely shortens the tenure of his successor." Id. at 881. While the Olson case is distinguishable from this particular case because it involved a constitutional and elective office, the Court quoted as persuasive the South Dakota case of Selway v. Schultz 268 N.W.2d. 149 (S.D. 1978). Selway supra involved a county planning and zoning board where the members had held over because the county commissioners failed to appoint their successors. The South Dakota Court stated that the "term of office" was distinguishable from the "tenure of an officer." Thus "the term of office is not affected by the holding over of an incumbent beyond the expiration of the term of which the incumbent was appointed, and such holding over does not change the length of the term but merely shortens the tenure of the succeeding officer." Id. at 151. In Selway supra the court stated as follows:

The above! . . . principle is consistent with the explicit intent of the Legislature that the board be a continuing body with various members retiring at regularly recurring intervals. The desired continuity could not be achieved if the

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