Opinion No. (1990)

IF A REGENT IS APPOINTED BY THE GOVERNOR TO FILL A VACANCY, COULD THE APPOINTEE TO THE VACANCY BEGIN FUNCTIONING AS A REGENT PRIOR TO CONFIRMATION BY THE SENATE?

YOUR LETTER STATES THAT THIS SITUATION HAS NOT YET ARISEN WITH THE BOARD OF REGENTS OF NORTHERN OKLAHOMA COLLEGE BUT YOU WOULD LIKE CLARIFICATION OF THE LAW AS THIS MAY ARISE IN THE NEAR FUTURE. THE ANSWER IN THIS LETTER WILL BE LIMITED TO THE ISSUE OF A VACANCY APPOINTMENT AND WILL NOT ADDRESS THE APPOINTMENT FOR A NEW TERM OF OFFICE.

THE GOVERNOR IS REQUIRED BY LAW TO FILL A VACANCY ON THE BOARD OF REGENTS OF NORTHERN OKLAHOMA COLLEGE. 70 O.S. 3702(B). THE SENATE MUST CONFIRM THE NOMINATION. 70 O.S. 3702(B). THIS SECTION PROVIDES IN RELEVANT PARTS:

"3702. BOARD OF REGENTS OF NORTHERN OKLAHOMA COLLEGE-ELIGIBILITY-APPOINTMENT AND TERMS OF MEMBERS-VACANCIES.

(B) VACANCIES ON THE BOARD SHALL BE FILLED BY THE GOVERNOR FOR THE UNEXPIRED TERM, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE."

THIS REQUIREMENT FOR CONFIRMATION OF A GUBERNATORIAL NOMINEE TO A VACANCY IS IN ACCORD WITH A RECENT ENACTMENT OF THE LEGISLATURE ON INTERIM APPOINTMENTS. 74 Ohio St. 2.2(A) 1988). AND B. 74 Ohio St. 2.2(A) REQUIRES THAT THE GOVERNOR'S NOMINEE TO A VACANCY BE CONFIRMED BY THE LEGISLATURE WHEN THE FULL TERM APPOINTMENT TO THAT POSITION IS SUBJECT TO CONFIRMATION.

SUBSECTION B (74 Ohio St. 2.2(B)), ON THE OTHER HAND AUTHORIZES THE NOMINEE TO HOLD OFFICE AND TO ASSUME THE DUTIES OF THAT OFFICE ON AN "ACTING OR INTERIM BASIS". THIS SECTION STATES: "2.2. VACANCIES REQUIRING LEGISLATIVE CONFIRMATION — INTERIM APPOINTMENTS

A. WHEN A VACANCY OCCURS IN ANY POSITION IN STATE GOVERNMENT AND APPOINTMENT TO THE POSITION FOR A FULL TERM IS SUBJECT TO CONFIRMATION BY ONE OR BOTH HOUSES OF THE LEGISLATURE, SUCH CONFIRMATION BY ONE OR BOTH HOUSES OF THE LEGISLATURE, SUCH CONFIRMATION SHALL BE REQUIRED FOR THE APPOINTMENT TO FILL THE VACANCY FOR THE UNEXPIRED TERM.

B. A PERSON WHOSE NOMINATION HAS BEEN SUBMITTED TO THE LEGISLATURE MAY BE APPOINTED TO HOLD SUCH OFFICE ON AN ACTING OR INTERIM BASIS AND MAY ASSUME THE DUTIES OF THE OFFICE AND RECEIVE ANY COMPENSATION OR TRAVEL REIMBURSEMENT ALLOWED BY LAW FOR THE POSITION PENDING CONFIRMATION BY ONE OR BOTH HOUSES OF THE LEGISLATURE."

THE PROVISIONS OF THIS SECTION, LIKE ANY GENERAL RULE OF LAW, APPLY ONLY WHEN THERE ARE NO SPECIFIC STATUTES TO THE CONTRARY. IN THIS MATTER 70 O.S. 3702(B) SPECIFIES THE NECESSARY STEPS TO FILL A VACANCY ON THE BOARD OF REGENTS OF NORTHERN OKLAHOMA COLLEGE. BUT THAT STATUTE IS UNCLEAR AS TO THE EXACT STATUS OF THE NOMINEE DURING THE PENDENCY OF THE CONFIRMATION. THEREFORE, 74 Ohio St. 2.2(B). HAS DIRECT APPLICATION BECAUSE IT ALLOWS THE NOMINEE TO ASSUME HIS DUTIES ON AN INTERIM BASIS. THE RATIONALE IS TO ALLOW THE BOARD TO FUNCTION WHILE THE CONFIRMATION IS PENDING IN THE LEGISLATURE.

IT IS THEREFORE THIS OFFICE'S INFORMAL OPINION THAT THE APPOINTMENT TO THE VACANCY MUST BE CONFIRMED BY THE SENATE, AS REQUIRED BY 70 O.S. 3702(B). DURING THE PENDENCY OF THE CONFIRMATION, THE NOMINEE MAY ASSUME THE DUTIES OF THE OFFICE AS AN ACTING MEMBER OF THE BOARD PURSUANT TO 74 O.S. SECTION 2.2[74-2.2](B).

(YASODHARA MOHANTY)