Kansas Attorney General Opinion 1992-011

ROBERT T. STEPHAN
ATTORNEY GENERAL
January 29, 1992
ATTORNEY GENERAL OPINION NO. 92- 11
Carl 0. Knop, Chairman
Kansas State Board of Technical Professions
Suite 507
Landon State Office Building
900 Jackson Street
Topeka, Kansas 66612-1214
Re: State Boards, Commissions and Authorities--State
Board of Technical Professions--State Board of
Technical Professions; Purpose; Appointments;
Vacancies
Synopsis: Terms of office of the members of the state board
of technical professions were originally set by
statute and appointments made accordingly. The
terms of all subsequent appointees must be made
with reference to the initial terms, each
commencing at the end of the preceding term. Any
appointments made during a term are for an
unexpired term. Cited herein: K.S.A. 74-7006,
Kan. Const., art. 5, § 2.
*
Dear Mr. Knop:
As chairman of the Kansas board of technical professions you
inquire whether certain board members' terms of appointment
begin at the time of appointment or at the end of their
predecessors' terms.
You indicate that three board members are serving for 3 years
instead of the 4 year term specified in K.S.A. 74-7006 because

their appointments were made a year after the date of
expiration of their predecessors' terms. You also have three
board members whose terms run from the time of appointment
rather than from the date of expiration of their predecessors'
terms.
Appointments to the board of technical professions are made
pursuant to K.S.A. 74-7006. Enacted in 1976 and never
amended, the statute sets the beginning date of the term for
each initial board member as the effective date of the act,
July 1, 1976. The initial board members served staggered
terms, one for one year, two for two years, three for three
years and three for four years. The statute further provides
that all subsequent appointments are to be for four years and
limited to three successive four year terms. Regarding
vacancies the statute states: "Whenever a vacancy shall occur
in the membership of the board for any reason other than the
expiration of a member's term of office, the governor shall
appoint a successor of like qualifications to fill the
unexpired term."
Kansas case law establishes two controlling factors that
determine the length of term of any appointed officer. The
first factor is whether the statute provides for a specific
date for the commencement or termination of a term of office,
and the second factor is whether the statute specifically
provides for the service of an unexpired term. See Hale v.
Bischoff, 53 Kan. 301 (1894); State of Kansas v.
Wentworth, 55 Kan. 298 (1895); State of Kansas v.
Breidenthal, 55 Kan. 308 (1895); and Tresner v.
Rees, 154 Kan. 581 (1941).
Each of the above-cited cases that analyze the first factor
involves statutes that have no provision for the time of the
beginning or ending of a term and for this reason in these
cases the supreme court found that the appointing power has
the ability to fix the commencement of the term at the time of
appointment. Generally, however, after the term is fixed by
the first appointment "all subsequent terms of office
necessarily have reference to such initial period, and each
term commences at the end of the preceding term." 63A
Am.Jur.2d Public Officers and Employees, § 160 (1984).
Thus, analyzed under the first factor, the terms provided for
in K.S.A. 74-7006 would all begin July 1st of every four
years with reference to the initial appointment.
The second factor is a little more complicated because of how
an "unexpired term" or fractional term has been interpreted.

In Tresner (appointment of commissioner of elections), the
statute in question fixed the term at four years but did not
prescribe a commencement or termination date. The statute
also contained this language:
"The governor shall appoint [the
commissioner's] successor for the same
term of [four] years; and in case of
death, resignation or removal of the
commissioner of elections, the appointment
shall be for the unexpired term. . . ."
The supreme court found that by specifically listing the
circumstances under which an appointee would serve an
unexpired term, the legislature intended that all other
appointees would serve for the term of four years from their
appointment. The statute for appointing the board of
technical professions K.S.A. 74-7006, quoted above, requires
filling a vacancy for the unexpired term in all instances
except at the expiration of a member's term. Thus Tresner
is not applicable because there is no unexpired term when a
vacancy is due to the expiration of a member's term.
Unexpired terms are created by vacancies that occur within a
term and not by a holdover serving a successor's term.
As discussed in Attorney General Opinions No. 91-35 and
91-117, a hold over (that by definition involves the failure
of an appointing authority to timely appoint a successor)
cannot extend his term of office. The Kansas constitution,
article 15, section 2 limits the tenure of any office to four
years. Moreover a holdover's term has nothing to do with the
beginning or ending of a term because a holdover is serving
part of a succeeding term. A holdover is for the benefit of
the public, to provide an official authorized to conduct the
business of the office in the event there is a failure of
election, failure to qualify once elected or appointed or in
the event there is a delay in appointment. See
Barnett v. Duff, 114 Kan. 220, 229 (1923) dealing
with the governor's power to revoke recess appointments made
by his predecessor; 63A Am.Jur.2d Public Officers and
Employees, § 169 (1984) describing a holdover tenure.
We thus ascribe to the dissenting opinion in Tresnor at
154 Kan. 586-87 (1941).
"The held-over [sic] tenure served by an
officer holding over after the end of his
term is a part of the succeeding term.

The officer so holding over is a de
jure officer. The office is not vacant.
"The statute also provides 'the governor
shall appoint a commissioner of elections
. . . for a term of four years' and 'shall
appoint his successor for the same term of
years.' This contemplates successive
terms of four years each, and when one
term ends the governor 'shall appoint' a
'successor.' Obviously, there is no room
here to say the time of the appointment of
the successor was left to the discretion
of the appointing officer. He is not
given authority to change the length of
the term of office. That is fixed by
statute.
"The statute then provides 'in case of
death, resignation or removal of the
commissioner . . . the appointment shall
be for the unexpired term.' These
provisions deal with vacancies which occur
within a term. They have nothing to do
with reappointment at the end of the
term--that had been provided for
previously in the statute."
In conclusion, K.S.A. 74-7006 differentiates between a vacancy
for any reason and a vacancy that results from the expiration
of a member's term of office. In the event that a vacancy
occurs from the expiration of a member's term of office there
is no unexpired term being served because the holdover's term
has expired. Thus because the holdover cannot extend his own
term he must be serving his successor's term. As stated, a
holdover has nothing to do with the beginning or ending of a
term of office because a holdover is serving part of the
succeeding term.
It is therefore our opinion that the legislature intended
appointments made to the board of technical professions

pursuant to K.S.A. 74-7006 to commence at the time of the
expiration of the predecessor's term.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Guen Easley
Assistant Attorney General
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