W. PATRICK DONLIN, District Attorney, Price County
You have requested my opinion whether a vacancy on the county board which resulted from a resignation can be filled by appointment by the county board chairman when the board is not in session.
You state that the board will not meet in regular session until February and that the chairman would like to fill the vacancy, subject to approval by the board, when it meets.
I am of the opinion that the person appointed would have legal authority to serve after appointment by the chairman even though the appointment had not been approved by the county board. *Page 2
Section 59.03 (2) (e), Stats., provides:
"(e) Vacancies. In the event of a vacancy on the county board caused by death, resignation or removal from office, the county board chairman with the approval of the county board shall appoint a person, who is a qualified elector and resident of the supervisory district, to fill the vacancy for the unexpired portion of the term to which he is appointed and until his successor is elected and qualified."
The law abhors a vacancy and where a vacancy does in fact exist, as in the case of resignation or death, the person appointed would attain a de facto status.
County supervisor is an elective office. There is no directly applicable provision in sec. 17.21, Stats. Section 17.22 (2), Stats., however, which applies to appointive offices, provides in part:
"(2) Vacancies in the offices of officers appointed by the county board, occurring when the board is not in session, shall be filled in manner and for terms as follows:
"* * *
"(d) In the office of any other officer appointed by the county board, by temporary appointment by the chairman of the county board. A person so appointed shall hold office until his successor is appointed and qualifies, and such successor shall be appointed by the county board for the residue of the unexpired term at its meeting next after such vacancy occurred."
The person appointed would not attain de jure status until approved by the county board.
The matter could be expedited by having a special meeting of the board, called pursuant to sec. 59.04 (2) (a), Stats., and there may be other county business which would warrant the expense of resorting to such call.
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