REQUESTED BY: G. Peter Burger, Jefferson County Attorney, Courthouse, Fairbury, Nebraska, 68352. Does the present or serving county surveyor removing himself from the jurisdiction and the failure of any candidates to file or run for the office at the general election in any way affect your opinion as expressed in Attorney General's Opinion No. 266?
When a vacancy occurs in a county office and there is no successor elected at a proper election, does this in any way affect the County Board's ability to set the compensation of the county official for the upcoming term? Specifically, can the County Board hire a county surveyor at a salary which is greater or less than that which was set last spring, pursuant to R.R.S. 23-1114, for the upcoming term to commence January 4, 1979?
No.
No.
In stating that the present county surveyor has removed himself from the jurisdiction, it would appear that you have stated the basis for a vacancy in office. Section 32-1037, R.R.S. 1943, provides, inter alia, that civil offices shall be vacant where the incumbent has removed from office, ceased to be a resident of the State, district, county, township, precinct, or ward in which the duties of his office are to be exercised, or upon failure to elect at a proper election, there being no incumbent to continue in office until his successor is elected and qualified. Thus, it appears that you have a vacancy in the office, notwithstanding the provisions of Section 23-1901.01, R.R.S. 1943, which authorizes the appointment of a county surveyor from another county.
Section 32-1040, R.S.Supp. 1978, provides that vacancies in office shall be filled, in county and precinct offices, by the county board, and states:
"* * * Unless otherwise provided by law, all vacancies shall be filled within sixty days after the vacancy occurs, unless good cause is shown if this requirement imposes an undue burden."
As to the second question whether the county can hire a surveyor at a salary different than that which was set at least sixty days prior to the closing of filings of certificates of nomination to place names on the primary ballot, pursuant to Section 23-1114, R.R.S. 1943, Article III, Section 19 of the Constitution provides that the compensation of public officers shall not be increased or diminished during the term of office. It is our belief that a vacancy, or an appointment to fill an unexpired term does not alter the term of office which is set by Article XVII, Section 4 of the Constitution, and by Section 32-308, R.R.S. 1943, which makes it clear that the term of office for County Surveyors is four years. Therefore, the salary set pursuant to Section23-1114 cannot be altered until such time as the statutory period for filings of certificates of nomination for that office again arrives.