AGO 98023.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98023. DATE: April 7, 1998SUBJECT: Legality of Prospective Appointments Submitted to the Legislature by the GovernorREQUESTED BY: Senator Jim Jones, Nebraska State LegislatureWRITTEN 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 pertinent part: 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...